January 6, 2014
This responds to your inquiry (13-174) asking about your ethical obligations whenever your former law clerk, who is now employed by an agency which regularly appears before in your court, appears before you.
The Committee previously has advised that when a judge’s former law clerk
appears within the first year after the employment relationship ends, the judge is
only required to disclose the relationship (see Opinion 08-107). Recusal is required
only upon request after such disclosure (see id.). Nevertheless, a judge is not
prohibited from disqualifying him/herself when the judge’s former law clerk appears.
When disqualification is not mandated, the judge “is the sole arbiter of recusal. This
discretionary decision is within the personal conscience of the court” (People v
Moreno, 70 NY2d 403, 405 ). Certainly, where a judge questions his/her own
ability to be impartial in a particular matter, the judge must not preside (see Opinion
11-64). Therefore, you may choose to disqualify yourself whenever your former law
clerk appears, even where a quasi-judicial official initially presided in the matter.
As for emergency matters, the Committee advises that you consult with your Administrative Judge and arrange an alternative, such as a stand-by duty judge, to handle those urgent matters on which your former law clerk appears. In any event, it is ethically permissible to preside over such cases under the emergency doctrine.
Enclosed, for your convenience, are Opinions 11-64 and 08-107 which address these issues.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)