September 11, 1997
1. Subject to disclosure and remittal, (a) judge may preside in a case
where one of the attorneys involved is a former law partner of the judge's
law clerk with whom the law clerk is involved in partnership dissolution
litigation; and (b) in a case where one of the attorneys is also serving
as an arbitrator in the dissolution litigation. 2. The law
clerk must be insulated from any involvement in matters involving the former
partner or the arbitrator.
22 NYCRR 100.3(E)(1), 100.3(F);
Opinions 88-140 (Vol. III),
90-33 (Vol. V), 90-146 (Vol. VI),
93-21 (Vol. XI), 93-132 (Vol. XI).
A judge asks whether there must be recusal in connection with proceedings in which one of the parties is represented by an attorney who is a former law partner of the judge's law clerk. The judge advises that the dissolution of the law clerk's former partnership resulted in litigation, certain parts of which have been referred to an arbitrator. The judge also inquires as to any requirement to disqualify himself/herself in any case in which this arbitrator appears as an attorney.
Section 100.3(E) (1) of the Rules Governing Judicial Conduct states that
"A judge shall disqualify himself or herself in a proceeding in which the
judge's impartiality might reasonably be questioned ... "In the opinion
of this Committee, the law clerk's relationship with the former partners,
including those which whom he/she may be involved in litigation, does not
automatically require the judge to disqualify himself/herself in all cases
in which former partners appear as attorneys. However, as in other cases
where the judge's law clerk had a current or past personal or business
relationship with an attorney appearing before the judge, the Committee
believes that the law clerk's relationship should be revealed, and that
the judge's participation in the case should be subject to the procedures
set forth in section 100.3(F) of the Rules Governing Judicial Conduct (see,
Opinion 88-140 (Vol. III) [spouse of law clerk as attorney before judge];
Opinion 90-33 (Vol. V) [sister of law clerk as attorney before judge];
Opinion 90-146 (Vol. VI) [partner of law clerk as attorney before judge];
Opinion 93-21 (Vol. XI) [business associate of clerk as attorney before
judge]; Opinion 93-132 (Vol. XI) [judge's presiding in cases in which clerk
was involved with while serving as district attorney]). As in such cases,
the Committee also believes that the law clerk should be insulated from
any matter in which any one of the clerk's former partner is involved.
The same approach should be taken if the arbitrator mentioned above appears
as attorney in a proceeding before the judge. Also, "if the judge harbors
any doubts as to his [or her] ability to be impartial, the judge should
not preside in the matter" (Opinion 88-140, supra).