May 10, 2018
Digest: A new court attorney-referee, who served as principal law clerk to a judge in a specialized part, (1) may not hear cases on which he/she worked as a law clerk but (2) may hear new cases referred by that judge immediately on being hired.
Rules: CPLR 4301; 22 NYCRR 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(b)(I); 100.6(A); Opinions 16-19; 15-58; 14-27; 12-37; 10-107/10-158; 08-91; 07-04.
A supervising quasi-judicial official involved in the hiring process for a new court attorney-referee asks if a judge’s former principal law clerk may accept references on cases from his/her former judge once hired as a court attorney-referee. He/she specifically asks about (1) “cases … on which [the referee] worked” as a law clerk, and (2) “new cases not previously handled while employed with” the judge. A substantial percent of the referee’s calendar would be cases from the judge’s specialized part.
Court attorney-referees must comply with the Rules Governing Judicial Conduct in performing their quasi-judicial tasks (see 22 NYCRR 100.6[A]; Opinion 12-37). A judge must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]) and “shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment” (see 22 NYCRR 100.2[B]). A judge is disqualified in any case where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E]), including where he/she previously “served as a lawyer” in the matter (see 22 NYCRR 100.3[E][b][I]). As a referee has no legal power to relieve him/herself from his/her duties (see CPLR 4301), he/she must “advise the judge who appointed him/her” of his/her disqualification in a the case “so...the judge can relieve the [court attorney-referee] of his/her responsibilities with respect to the case and assign another court attorney referee” (Opinion 08-91).
The relation between a judge and his/her law clerk is of particular trust and confidence (see Opinions 16-19; 14-27; 07-04). Thus, a judge must ordinarily disclose the relationship for one year when the former law clerk, and in some circumstances his/her new colleagues, appears before the judge as an attorney (see e.g. Opinions 15-58 [District Attorney]; 14-27 [private attorney]) or as “a Part 36 appointee in an adversarial role” (10-107/10-158).1
Conversely, we note when a judge’s former law clerk is in a quasi-judicial role, such as a support magistrate, he/she serves in a “fundamentally different capacity than appearing as a lawyer in a matter” (see Opinion 16-19). We’ve advised that a judge may immediately appoint his/her former law clerk to quasi-judicial Part 36 positions such as a referee to hear and report or a referee to supervise disclosure (see Opinion 10-107/10-158). Of relevance here, we concluded where the former law clerk is appointed “to a [Part 36 position] that is quasi-judicial in nature,” rather than adversarial, the judge need not disclose the former employment relationship (id.). But, a judge may not appoint his/her former law clerk to a Part 36 position in any case that “was pending before the judge during the law clerk’s term of employment” (id.).
Here, too, the former law clerk, as a court attorney-referee, will be asked to perform quasi-judicial duties for judges of the court, including his/her former employer. That is, the referee would accept cases from his/her former judge for quasi-judicial review and determination.2
We believe the court attorney-referee should not accept references in any case where he/she was previously involved as a law clerk (see Opinion 10-107/10-158). Otherwise, assuming he/she can be fair and impartial, the court attorney-referee may accept referrals of new cases from his/her former judge immediately on undertaking the role.
1 Opinion 08-91 does not appear to be applicable here, as the prospective court attorney-referee will not be asked to preside in matters in which one of the attorneys is the judge for who he/she formerly clerked.
2 Court attorney-referee duties include conducting hearings, taking testimony and reporting fact findings to the referring judge, analyzing complex legal questions, writing confidential memoranda, and drafting opinions.