Opinion 15-43
March 19, 2015
Digest: A judge whose law clerk was personally involved in a case while employed by a government law office must insulate the law clerk from that case and disclose the insulation. The insulation may not be waived or remitted under these circumstances, but the judge may continue to preside in the case, provided that he/she can be fair and impartial. Conversely, where the law clerk held no supervisory role at the government law office and no personal involvement with a case, no disclosure or insulation is required.
Rules: Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(b)(i), b(ii); 100.3(F); Opinions 15-10; 13-64; 12-155; 09-27; 08-71; 07-105/07-119; People v Moreno, 70 NY2d 403 (1987).
Opinion:
The inquiring judge recently hired as a law clerk a lawyer who had been employed in a non-supervisory role in a government law office whose attorneys, including the law clerk, regularly appeared in the judge’s court. With respect to cases in which the law clerk had been personally involved during his/her prior employment, the judge asks whether a “waiver” or “remittal” of the law clerk’s “potential conflict” is available. The judge proposes that if such a procedure is permissible, and the parties consent, the judge will allow the law clerk to assist the judge in those cases. Conversely, if a party objects, the judge proposes to insulate the law clerk or have the case transferred to another judge of the court.
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]). Therefore, a judge must disqualify him/herself in any proceeding where the judge’s 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, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).
The Committee has advised that if a judge's law clerk, while employed by a government law office, was personally involved in a case in which that office now appears and the judge believes that he/she can be fair and impartial, the judge should insulate the law clerk, and disclose both the insulation and the reason for it (see Opinions 08-71; 07-105/07-119; cf. Opinions 12-155; 09-27). After insulating the law clerk, the judge is not disqualified from presiding over the case due to his/her law clerk’s former employment (see Opinion 12-155). Instead, on application for recusal, the judge should exercise discretion in light of the facts presented, as “the judge is in the best position to determine whether in that particular proceeding ‘the judge's impartiality might reasonably be questioned’” (Opinion 07-105/07-119; see also Opinion 08-71).
The question of whether a law clerk’s insulation may be remitted or waived appears to be a matter of first impression for the Committee. The present inquiry raises one specific instance of that more general question: whether there may be remittal of a law clerk’s insulation from a case based on the law clerk’s prior personal participation in the case as a lawyer during his/her former employment. The Committee notes that in the somewhat analogous situation, where a judge personally “served as a lawyer in the matter in controversy” (22 NYCRR 100.3[E][1][b][i]), the judge’s disqualification would not be subject to remittal (see 22 NYCRR 100.3[F]).1 The Committee believes the same principles apply here, and therefore the judge’s law clerk’s insulation should not be remitted, where the insulation is based on the law clerk’s prior personal involvement in the case during the law clerk’s former employment at a government law office.2
The judge also asks if the same result applies in other cases that were pending at the government law office during the law clerk’s employment, but where the law clerk had no contact with the case. A judge whose law clerk previously held a non-supervisory position in a government law office need not disclose the law clerk’s former employment with the office, or insulate the law clerk from a particular matter involving that office, if the law clerk “had no direct, personal involvement in the matter and that [law clerk]’s name does not appear in any filed papers” (Opinion 15-10; see also Opinions 08-71; 07-105/07-119). Here, too, the law clerk need not be insulated from other cases with which he/she was not personally involved.
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1 By contrast, disqualification from a proceeding on the ground that “a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter” (22 NYCRR 100.3[E][1][b][ii]) may be subject to remittal under appropriate circumstances (see 22 NYCRR 100.3[F]; Opinion 13-64).
2 The facts presented here do not permit the Committee to opine on whether, when and how a law clerk’s insulation might be remitted or waived in other circumstances which are not currently before the Committee.