October 24, 2019
Digest: A judge must insulate his/her law clerk from cases in which the law clerk was personally involved during the law clerk’s prior public or private employment and must disclose that insulation to the parties and their attorneys. Insulation of the law clerk on this basis cannot be waived or remitted and does not expire. However, the judge need not necessarily insulate the law clerk from other matters involving the law clerk’s former employer or former clients, unless other factors create an appearance of impropriety in a particular case.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(E)(1)(b)(I); Opinions 18-37; 16-166; 16-99 fn 2; 16-14; 15-233; 15-172; 15-43; 14-07; 12-155; 09-27; 08-71; 07-105/07-119; People v Moreno, 70 NY2d 403 (1987).
A full-time judge is interviewing applicants for a principal law clerk position. Some applicants are employed by a government law office that appears before the judge, while others are employed by private law firms appearing before the judge. The judge now asks if insulation and disclosure are required when the law clerk’s former employer appears. He/she also asks us to define our phrase “supervisory role” with respect to a law clerk’s prior employment (see e.g. Opinions 15-43; 08-71; 16-166).
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]). Thus, a judge must disqualify him/herself in any case where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E]), including in specifically enumerated circumstances required by rule or law (see 22 NYCRR 100.3[E][a]-[f]; Judiciary Law § 14). Conversely, where disqualification is not mandatory, a judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 ).
We have not yet defined the phrase “supervisory role,” as we take a practical, common-sense approach. We would recognize a supervisory role when an attorney (typically more senior) acts as a supervisor to other attorneys (typically more junior) and/or has administrative or supervisory responsibilities with respect to them. An attorney with a supervisory role may, for example, provide general or specific guidance and direction to more junior attorneys, approve their time, appear in their chain of command on an organizational chart, or the like. In some instances, they might formally sign-off on a more junior attorney’s work, have final say over strategy or tactics, and/or have the power to overrule a proposed approach. This guidance is necessarily very general due to this broad question; we cannot provide further guidance without considering concrete facts involving a particular individual.
This judge’s inquiry reflects some common misapprehensions about insulation/disclosure in cases involving a court attorney’s or law clerk’s prior employer. We have greatly simplified the rules. If the financial ties between the law clerk and former employer have completely ended, we no longer distinguish between private and public employers. Nor do we impose a two-year insulation rule in all cases involving the law clerk’s former employer. However, where insulation is required, it must be complete; the law clerk must be insulated from all aspects of the case. We set forth the two key principles below.
First, even if the law clerk was not formally assigned to a case, if he/she had any involvement with it at all in his/her former employ, including as a supervisor, the judge must totally insulate the law clerk and disclose that insulation (see e.g. Opinions 18-37; 16-99 fn 2; 16-14; 15-233; 15-43; 14-07; 12-155; 09-27; 07-105/07-119). This requirement does not expire, and the insulation can’t be waived or remitted (see e.g. Op’s. 18-37; 16-14; 15-233; 15-43).
Second, the judge need not always insulate the law clerk from other matters involving his/her former employer or former clients, unless other factors create an appearance of impropriety in a particular case (see Opinion 18-37). A different result applies if the law clerk was the agency head, and thus the attorney of record in all matters (see Opinion 15-172). Again, we cannot provide more detailed guidance on this point without considering concrete factual circumstances involving a particular individual.