Opinion 26-72
May 7, 2026
Digest: A judge who concludes he/she cannot be impartial in presiding over motions or trials in which a former law student intern appears as a prosecuting attorney may also not preside when the intern appears for arraignments.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 23-72; 14-192; 14-150; 11-125; 11-64; 10-107/10-158; 09-223; 08-71; 07-04; 95-58; 88-157; People v Moreno, 70 NY2d 403 (1987).
Opinion:
The inquiring judge’s recent law school intern has been hired as an assistant district attorney in the same county where the judge presides. The former intern will commence this employment slightly more than one year after leaving the judge’s chambers. The judge states that, based on his/her relationship with the former intern, the judge “would not be comfortable presiding over any motions or trials in which this person was the assigned” assistant district attorney, but asks whether he/she may preside over matters in which the intern is “just” assigned to staff a court part, “particularly in night or weekend arraignments when it may not be possible” to have another prosecutor present.
A judge must always avoid even the appearance of impropriety and act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]). A judge must not allow family, social, or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). A judge must disqualify in any proceeding in which the judge’s impartiality might reasonably be questioned, including where required by rule or law (see 22 NYCRR 100.3[E][1]; 100.3[E][1][a]-[f]; Judiciary Law § 14). Where disqualification is not mandatory, however, the judge is the sole arbiter of recusal, a discretionary decision within the personal conscience of the court (see People v Moreno, 70 NY2d 403, 405 [1987]).
We have advised that for a period of one year after a former law clerk leaves the judge’s employ, the judge must disclose the relationship when the law clerk appears before him/her (see Opinion 07-04). After disclosure, the judge retains discretion to grant or deny any request for recusal based on all the facts of the relationship and the particular case (see Opinion 10-107/10-158). We apply “a less restrictive rule with respect to a judge’s former law student intern” (Opinion 23-72). Thus, we said a judge need not disclose that an attorney appearing before him/her is the judge’s former law student intern, and may ordinarily preside “unless the judge personally has a doubt” about his/her ability to remain impartial (Opinions 95-58; 88-157).
Thus, absent some other factor, such as an ongoing social relationship that warrants disclosure or disqualification (see generally Opinion 11-125), a judge would not ordinarily need to disclose, let alone disqualify, when the intern appears before him/her as an attorney.
Here, however, the judge has already concluded that he/she “would not be comfortable presiding over any motions or trials in which this person” was the prosecutor, even though the internship ended more than a year ago. Clearly, “if [a] judge questions his/her own ability to be impartial in a particular matter, then he/she must not preside” (Opinion 11-64).
Where a ground for disqualification exists, a judge may not preside, even in “matters that appear to be routine, mundane, uncontested or ministerial” (Opinion 14-150 [citation omitted]). A “very narrow exception” exists for truly ministerial matters where “the judge’s role is purely formal, so that the judge lacks any real discretion in performing it, or if the task or function can properly be delegated to non-judicial personnel, or if it has no substantial legal effect” (id. [citation omitted]; see also Opinion 14-192 [“if a supervising judge is required to exercise any discretion in assigning or re-assigning a case, the judge should disqualify him/herself from doing so in any case over which he/she could not personally preside”]). We have recognized that an arraignment “is not merely administrative, but, rather, is a significant stage in the criminal proceeding when the judge must advise the defendant of his/her rights” and make other decisions affecting the defendant’s interests (Opinion 09-223). Accordingly, a judge who has a conflict with a particular attorney must disqualify at the outset of each case “and may not conduct an arraignment before doing so” (id.).
Accordingly, since this judge has determined that he/she cannot be impartial when the former intern appears on occasions that the judge deems substantial, such as motions or trials, the judge also may not preside in other matters in which the intern appears, including “routine calendar appearances, arraignments or omnibus motions” (Opinion 08-71).