March 11, 1999
NOTE: This opinion has been partly overruled by Opinion 09-27 to the extent that it requires a judge to insulate his/her law clerk for two years from all cases in which the law clerk's prior employer appears, even when the law clerk had no involvement in the case before the court. The opinion has also been modified by Joint Opinion 07-105/07-119 with respect to the judge's disqualification.
Digest: A judge (1) should insulate the judge's law clerk from any involvement in cases worked on by the law clerk while employed at a law firm and which are now before the judge; disclose the law clerk's prior employment; and exercise recusal in such cases if requested; (2) should not, for a period of two years, allow the law clerk to work on any other cases of the law firm that are before the judge, but need not disclose or recuse in such instances.
Rule: 22 NYCRR 100.2; 100.3(E)(1).
The inquiring judge who is hiring a new law clerk, handles primarily medical malpractice cases. As explained by the judge, the duties of the law clerk "are to research issues, draft memoranda and decisions, and to conduct preliminary and discovery compliance conferences." In the past, the judge's law clerk "had independently conducted these preliminary and compliance discovery conferences with minimal supervision." The person the judge is hiring works for a medical malpractice defense firm that has cases in the judge's part.
Fully aware that the law clerk may not work on any cases in which services were performed while employed at the law firm, and that the law clerk must be insulated from such cases, the judge seeks the advice of the Committee concerning the occasions for recusal; the handling of cases of the law firm in which the law clerk had no involvement; and the extent of required disclosure by the judge of the law clerk's former employment.
In those cases which had been worked on while at the firm by the law clerk, the Committee advises that the judge should disclose that fact, and explain the insulation of the law clerk from any current or future involvement in the matter. If, following such disclosure and explanation, there is a request that the judge recuse him/herself, the Committee believes that the judge should honor such request and exercise recusal. In this way, any claim of an appearance of impropriety (22 NYCRR 100.2) or any questioning of the judge's impartiality (22 NYCRR 100.3[E]) should be obviated. Absent recusal, the judge may conference those cases and preside over the trials.
As to cases of the law firm in which the law clerk had no involvement whatsoever, and which are now before the judge, the Committee does not believe that the judge is required to make disclosure or exercise recusal. But for a two-year period, the law clerk should not conference such cases. At that point, the prior relationship with the law firm will have become sufficiently attenuated as to no longer require abstention by the law clerk from being involved with such cases.