April 2, 2008
A judge inquires whether he/she may review and decide objections to orders issued by his/her former principal law clerk in his/her new capacity as a Support Magistrate.
A judge must disqualify him/herself in a proceeding in which the judge’s impartiality might reasonably be questioned (see NYCRR 100.3[E]). As the situation described is not specifically addressed by this Rule, whether the judge can remain fair and impartial, or must recuse from reviewing and deciding the former principal law clerk’s orders, is left to the judge’s sound discretion (see People v Moreno, 70 NY2d 403 ; Opinions 07-35; 04-84).
Thus, if the judge believes he/she can be fair and impartial, he/she may review and decide objections to orders issued by a former principal law clerk when they are presented. If the judge believes that he/she cannot remain fair and impartial, he/she should refrain from doing so. In the latter case, the Committee suggests that the judge ask the chief clerk and/or other appropriate administrative authority to assign objections to orders issued by the former principal law clerk to a different judge for review and determination for a period of one year.