January 28, 2021
Digest: Where a judge’s law clerk previously served as law clerk to a recently
retired judge, and that ex-judge is now employed as an attorney in a
government law office:
(1) if the ex-judge does not appear, the judge may preside and need not insulate the law clerk or disclose the prior employment in matters involving that government law office;
(2) for two years, if the ex-judge appears, the judge may not preside unless the judge insulates the law clerk and discloses the prior employment relationship.
Rules: 22 NYCRR 1200, Rule 1.12; Opinions 20-26; 10-41; 08-98.
The inquiring judge recently assumed the bench. The judge’s confidential law clerk was formerly employed in the same court as the confidential law clerk of a recently retired judge (the “ex-judge”) who is now working as an attorney for a government law office. The judge can be fair and impartial in such matters, but asks if disclosure or insulation of the law clerk is ethically required (1) in all cases involving the governmental law office; (2) in cases where the ex-judge has appeared as an attorney; and/or (3) in cases involving the government law office that were previously assigned to the ex-judge.
A judge is not necessarily disqualified from presiding merely because an attorney in the case was formerly a judge in the same court (see Opinions 08-98; 10-41). Rather, the judge must determine whether their relationship could create an appearance of impropriety (see Opinions 08-98; 10-41).
We have also said that a judge, whose law clerk previously served as the law clerk to a now-retired judge, must disclose such employment when the retired judge appears as a lawyer before the judge and must insulate the law clerk from the case for a period of two years after the date the ex-judge retired. It is within the judge’s discretion to determine whether the judge can be fair and impartial when the retired judge appears before the judge (see Opinion 10-41).
Here, since the inquiring judge has already determined they can be fair and impartial, we believe the judge may preside in cases involving the government law office. Further, in matters where the ex-judge does not appear, the judge need not disclose the law clerk’s prior employment or insulate the law clerk.
However, in matters where the ex-judge does appear, the judge must insulate their law clerk and disclose the prior employment relationship for two years after the ex-judge’s retirement. The judge may permit the parties an opportunity to waive or remit the law clerk’s insulation as described in Opinion 20-26:
The judge must make full disclosure of the basis for the law clerk’s insulation on the record. If the parties and their counsel, without participation by the judge, affirmatively consent to remit or waive the law clerk’s insulation, and the judge is satisfied the law clerk will be fair and impartial, the judge may accept the remittal of insulation and incorporate such remittal into the record. Thereafter, the judge may permit the law clerk to participate in the case.
Alternatively, if insulation and/or waiver of insulation in matters where the ex-judge appears creates an undue administrative burden upon the judge and the court, the judge may simply exercise recusal in such matters for two years.
We note that these principles apply whether or not the matter was pending before the court during the ex-judge’s judicial term.1
1 We assume that the ex-judge and the government law office will comply with Rule 1.12 of the Rules of Professional Conduct (see 22 NYCRR 1200, Rule 1.12) or other appropriate authority concerning matters that were previously before them in their former judicial capacity. The inquiring judge may, of course, ask any questions the judge deems necessary or appropriate to determine if the ex-judge’s actual or apparent involvement in a particular case is proper.