June 16, 2016
Digest: (1) A judge is not required to disclose or recuse in matters involving the chief clerk’s former private law firm employer. However, the clerk must be insulated from any matters in which he/she was personally involved, including matters where he/she prepared, witnessed or notarized a will now offered for probate. (2) The judge may likewise preside over matters in which the chief clerk’s attorney spouse appears, subject to insulation of the clerk.
Rules: SCPA §§ 2609(1)(a); 2605(3); 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); Opinions 16-14; 15-172; 15-43; 14-27; 12-176; 12-155; 10-180; 09-211; 09-111(A); 09-27; 07-105/07-119; 96-85.
A Surrogate asks several questions about potential conflicts involving the chief clerk, who was formerly associated with a private law firm. The judge asks if disclosure or disqualification is required in matters involving the chief clerk’s former employer. The judge says some of the firm’s current matters involve new clients who retained the firm only after the chief clerk’s departure. The judge asks if contested and uncontested matters should be treated differently1 and whether the judge’s obligations change if the chief clerk had no contact with the file while at the firm. The judge also asks specifically about matters involving wills admitted for probate that were previously prepared, witnessed or notarized by the chief clerk while at the firm. The judge also asks if he/she may preside in matters involving the chief clerk’s attorney spouse.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge must not allow family relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself when the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]). Of course, if the judge questions his/her own ability to be fair and impartial in a matter, the judge may not preside.
Chief Clerk’s Former Employer
Although the Committee has not previously addressed a judge’s ethical duties in matters involving a chief clerk’s former private law firm employer, the Committee has addressed similar issues with respect to a judge’s personal appointee (see Opinion 12-155; 07-105/07-119). The Committee has consistently advised that a judge’s impartiality cannot reasonably be questioned in all matters involving the law clerk’s former employer (see e.g. Opinion 12-155; 09-27). Rather, a judge must insulate his/her law clerk from matters involving the law clerk’s former employer only where the law clerk had some personal involvement in the matter (see Opinion 12-155).2 In such instances, the judge must disclose the former employment relationship, the nature of the law clerk’s exposure to the matter and the law clerk’s insulation from the matter (see id.; see also Opinions 12-176; 09-27). Finally, should a party request the judge’s disqualification, the judge should consider all relevant factors, but the decision to preside or recuse is solely in the judge’s discretion (see e.g. Opinions 15-43; 12-176).
As the relationship between a judge and a court’s chief clerk is, presumably, decidedly less close than that between a judge and his/her law clerk (see e.g. Opinions 14-27; 10-180; 09-211), there is clearly no need for the judge to recuse him/herself from a matter based on a chief court clerk’s conflicts. The judge may thus preside without any obligation to disclose or recuse.
Still, in the Committee’s view, the chief clerk must be insulated from all matters in which he/she had any involvement as a practicing attorney, regardless of whether they are contested or uncontested in Surrogate’s Court (cf. Opinion 15-43 [where law clerk was personally involved in a case during his/her former legal employment, the law clerk’s insulation from that case may not be waived or remitted]). For example, at least an appearance of impropriety is apparent, if the chief clerk were to issue a citation or letters in a matter the chief clerk had personally worked on while in private practice. The same rationale requires insulation where a will offered for probate was previously prepared, witnessed or notarized by the chief clerk.
However, insulation is not required in other matters involving the chief clerk’s former employer, where the chief clerk had no contact whatsoever with the file, even if such matters were pending at the law firm during the chief clerk’s employment.
Chief Clerk’s Attorney Spouse
The Committee has advised that a multi-bench judge may preside over matters involving a chief clerk’s attorney spouse, as long as the chief clerk is insulated from the matter and the judge can be fair and impartial (see Opinion 96-85). The Committee stated that such matters should be referred to another court clerk and the chief clerk should not appear in the courtroom when his/her attorney spouse appears (see id.). The Committee sees no reason to deviate from this prior decision.
Thus, this judge may preside over matters where the chief clerk’s attorney-spouse appears, but must insulate the chief clerk.
Comment on Insulation of a Surrogate’s Court Chief Clerk
The Committee understands that the Surrogate’s Court Procedure Act enumerates powers that the chief clerk and deputy chief clerk may exercise concurrently with the Surrogate, including the power to “[t]o certify and sign, issue or seal in the name of the clerk (i) any papers or records of the court, (ii) any process to which a party is entitled as of course, (iii) any letters or other mandate of the court” (SCPA § 2609[a]).
The inquirer may, if desired, consult with an administrative or supervising judge or other court administrators on practical ways to effectuate the ethically required insulation, particularly if the chief clerk would ordinarily be the one to issue and sign certain categories of documents, such as letters of administration. For example, the judge might consider having two sets of forms or letters on hand, one set up for signature by the chief clerk and another to be signed by an individual who is authorized to act when the chief clerk must be insulated from a matter (see e.g. SCPA § 2605).
1 The judge explained that his/her proposed distinction between contested and uncontested matters applies only to matters already filed with the court as of the chief clerk’s start date, as there is no way to discern whether a newly filed matter will ultimately be contested.
2 The Committee has abolished the requirement, found in certain prior opinions, that a law clerk must be insulated from all matters involving a former private law firm employer for a period of two years (see Opinion 09-27 [amending prior opinions]). Now, insulation and disclosure are required only for matters where the law clerk had some personal involvement, regardless of whether his/her employment was in the public or private sector (see e.g. Opinions 16-14; 09-111[A]; 09-27; but see Opinion 15-172 [different result if the law clerk was the head of an agency and thus attorney of record in all matters]).