Opinion 12-45
March 8, 2012
Please Note: While it does not affect the outcome of this opinion, we note that Opinion 21-22(A) abolishes our former requirement that, “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification,” a judge must disqualify if a party is appearing without counsel (see id. fn 3).
Digest: Disclosure is not mandatory where a retired appellate judge’s former principal law clerk appears before the court, provided that the matter is not one in which the attorney personally participated and the presiding judges conclude that they can be fair and impartial.
Rules: Judiciary Law §§14; 212(2)(l); 22 NYCRR 16.1; 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(a)-(g); 101.1; 1200.1.11(a)(2); Opinions 11-124; 09-111[A]; 08-107; Joint Opinion 08-76/08-84/08-88/08-89; Opinion 07-173; Joint Opinion 07-87/07-95; Opinion 07-04; People v Moreno, 70 NY2d 403 (1987).
Opinion:
An appellate judge, on behalf of his/her entire court, asks whether disclosure is required when the former principal law clerk of a recently retired judicial colleague appears as a private attorney to argue an appeal. The judge states that although the former law clerk was on the retired judge’s personal staff, matters are typically heard and decided by a panel of multiple judges, and “the working relationship between the [judges] created an opportunity for all the court attorneys to work together on complex issues, especially in the field” in which the former law clerk now practices. Although the remaining appellate judges are “familiar with” the former law clerk professionally, the inquiry reveals no social, financial, or other relationship between them. The judge states that neither the judge nor his/her judicial colleagues have any doubt about their ability to be impartial in matters involving the former law clerk.
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]). In particular, a judge must not allow social or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself in a proceeding in which his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]) or in other specific circumstances as required by rule or by law (see generally id.; Judiciary Law §14). Conversely, where disqualification is not mandatory, the judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).
The Committee has previously advised that, for a period of one year after a law clerk leaves his/her court employment, the law clerk’s judge “should disclose his/her relationship with the former law clerk when he/she appears as an attorney before the judge, and recuse upon a party’s request” (Joint Opinion 07-87/07-95; see also Opinion 07-173 [discussing the judge’s obligations when private practice colleagues of the former law clerk appear before the judge during the one-year period]; 08-107 [discussing the judge’s obligations when public law firm colleagues of the former law clerk appear before the judge during the one-year period]). This requirement recognizes that the relationship between a judge and his/her own personal law clerk is one of “particular trust and confidence,” which involves generally “the kind of professional interchange that might be found between long-time colleagues in a law firm” (Opinion 07-04).
Here, however, the former law clerk was not the personal law clerk of any of the inquiring appellate judges, but only of their retired colleague. The Committee recognizes that the judges on an appellate panel may discuss their cases together in conference with all of their respective law clerks present.1 In the Committee’s view, such conferencing does not, without more, transform each appellate law clerk into the personal law clerk of every judge of the court. Individual appellate judges who hire their own individual law clerks still develop a distinct relationship of “particular trust and confidence” with their own law clerks. Accordingly, the Committee concludes that its prior Opinions concerning appearances by a former law clerk do not require disqualification or disclosure under the circumstances presented.
Based upon the information provided, it also does not appear that there are grounds for mandatory disqualification under section 14 of the Judiciary Law or the specific provisions of Section 100.3(E)(1)(a)-(g). Therefore, absent other disqualifying factors,2 each of the inquiring appellate judges may preside over matters in which their former judicial colleague’s former principal law clerk appears, unless a particular judge believes he/she cannot be fair and impartial, a determination solely within the judge’s discretion after searching his/her personal conscience (see People v Moreno, 70 NY2d 403 [1987]).
For similar reasons, under the circumstances presented, the Committee also believes that the remaining appellate judges’ impartiality cannot reasonably be questioned based solely on the appearance of their retired colleague’s former principal law clerk, provided that the matter is not one in which the former law clerk was personally involved (see 22 NYCRR 100.3[E][1]; cf. 22 NYCRR 1200, Rule 1.11[a][2] [a lawyer who previously served as a government employee “shall not represent a client in connection with a matter in which the lawyer participated personally and substantially as [an] employee”]). Because disclosure is primarily intended to “afford the parties an opportunity to seek a judge’s recusal” (Opinion 09-111[A]), where a judge’s impartiality cannot reasonably be questioned, it follows that disclosure is not mandatory (see e.g. Joint Opinion 08-76/08-84/08-88/08-89).3 The Committee therefore concludes that disclosure is not mandatory where a retired appellate judge’s former principal law clerk appears before the court’s remaining appellate judges, provided that the matter is not one in which the attorney personally participated and the presiding judges conclude that they can be fair and impartial.
Any of the inquiring judges may, of course, choose to disclose the relationship if he/she wishes to do so (see Opinion 11-124). Unlike situations in which the Committee has mandated disclosure, the purely prophylactic disclosure contemplated here will not require the judge’s disqualification when a party is unrepresented (see id.). And, even if a party or counsel objects, the judge retains the discretion to preside under these circumstances (see id.).
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1 Indeed, the inquiring judge states that there was “opportunity for all the court attorneys to work together on complex issues.”
2 The Committee is not aware of any court rule or statute requiring disqualification or disclosure under the facts presented; for example, 22 NYCRR 16.1 does not apply to former appellate court attorneys or law clerks. However, the Committee notes that it cannot comment on questions of statutory interpretation (see Judiciary Law §212[2][l]; 22 NYCRR 101.1).
3 Nor does the Committee perceive any substantial likelihood of unfairness to opposing parties or counsel from non-disclosure of an attorney’s former employment relationship with a now-retired appellate judge. Even if the former law clerk recalls discussions of “complex issues” from cases that arose during his/her former employment, the Committee notes that the more successful arguments are routinely embodied in written opinions available to all attorneys.