March 19, 2015
Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).
Digest: A judge may preside over a case where a clerical court employee, not the judge’s personal appointee, has provided freelance transcription services to a private attorney, but must insulate the employee from the case and disclose the employee’s prior involvement and insulation.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(F); Opinions 14-169; 11-152(A); 11-64; 97-127; 97-112; People v Moreno, 70 NY2d 403 (1987).
The supervising judge of a court states that an employee with administrative/clerical duties in the court has accepted outside employment as a freelance provider of transcription services for private attorneys. In the past, some of the employee’s outside work involved providing transcription services for cases pending in the employee’s own court.1 The supervising judge therefore asks whether the court’s judges may preside over cases in which the employee provided freelance transcription services to private attorneys; and whether the judges’ ethical obligations may be different with respect to new or post-judgment filings in such cases after they are initially concluded. The judge also states that it will not be difficult to insulate the employee from these cases, if necessary.
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]). A judge must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]), and must disqualify him/herself when the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]).2
The Committee has previously advised that a full-time judge may allow his/her personal secretary to provide transcription and typing services, on non-court time, to law firms in the area, provided that the attorneys of any firm that uses the secretary’s services do not regularly appear before the judge and the secretary performs no services in connection with any case pending before the judge (see Opinions 97-127; 11-152[A]). The judge is disqualified, subject to remittal, whenever an attorney from a firm that is currently using the judge’s secretary’s typing services appears before the judge (see Opinions 97-127; 11-152[A]). The obligation continues until “the work is completed and the fees are paid” (Opinion 11-152[A]).
The Committee has also advised that a judge is disqualified, subject to remittal, when a private law firm that employs the court’s part-time court clerk appears before the judge (see Opinion 97-112). Thus, the judge may preside only if the judge decides he/she can remain impartial, discloses the clerk’s employment relationship on the record, obtains appropriate written consent (or consent on the record) to the judge’s continued participation, and insulates the court clerk from any involvement in the case (id.).
The Committee believes that the present inquiry is distinguishable from both lines of prior opinions. Unlike Opinions 97-127 and 11-152(A), the court employee is not a personal appointee of a judge on the judge’s staff and is not even assigned to an individual judge but, instead, serves as a court office assistant with general clerical/administrative duties for the court as a whole. Unlike Opinion 97-112, it appears that the court employee does not have a full-time ongoing employment relationship with a particular lawyer or law firm, but is instead accepting freelance assignments to provide transcription services in particular cases.
In these circumstances, the Committee believes a judge’s impartiality cannot “reasonably be questioned” in a specific case based only on the personal involvement of a clerical/administrative court employee, who is not the judge’s personal appointee, in providing freelance transcription services to a private attorney in the case, provided (a) the court employee is fully insulated from the case and (b) the insulation is disclosed on the record to the parties and counsel. Thereafter, the judge may preside even if a party objects, and recusal is solely in the judge’s discretion.
Of course, because insulation and disclosure are mandated here in lieu of outright disqualification, the judge must disqualify him/herself (a) if it is not feasible to insulate the clerical court employee from the case (cf. Opinion 97-112), (b) if any party appears without counsel (see e.g. Opinion 14-169), or (c) if the judge cannot, or does not wish to, make full disclosure (see id.).
1 It appears that, going forward, the employee will no longer accept freelance work on cases that are pending in the court to which the employee is assigned.
2 Where, as here, disqualification is not mandated under the specific circumstances set forth in the rules (see 22 NYCRR 100.3[E][a]-[f]) or Judiciary Law § 14, a judge must consider whether his/her impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E]). If disqualification is not mandated under this objective standard, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 ). Of course, if the judge questions his/her own ability to be impartial in a particular matter, then he/she must not preside and remittal is unavailable (see Opinion 11-64).