March 11, 2021
Digest: While a judge’s law clerk is being represented by a law firm, the judge must insulate the law clerk from all matters involving that law firm and disclose the law clerk’s conflict and insulation when that law firm or any of its attorneys appear. After disclosure, the judge may preside if the judge is satisfied that they can be fair and impartial, even if a party objects.
Rules: 22 NYCRR 100.1; 100.2; 100.2(A); 100.2(C); 100.3(E)(1); Opinions 21-22(A); 13-26; 09-141; 05-49.
The inquiring judge’s principal law clerk is represented in a personal injury case by a particular law firm. The judge asks if it is permissible to preside over other, unrelated matters where that law firm, or one of its attorneys, appears before the judge. The judge notes that the law firm was selected by the law clerk’s insurer.
A judge must uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1), must avoid even the appearance of impropriety (see 22 NYCRR 100.2), and must act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not lend the prestige of judicial office to advance any private interests and must not convey, or permit others to convey, the impression that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]). Further, a judge must disqualify in a proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E]).
Where a judge’s law clerk is represented by an attorney or law firm, the judge need not disqualify from other matters in which that attorney or law firm appears (see e.g. Opinions 13-26; 05-49). Instead, the judge must insulate the law clerk from such matters and disclose both the insulation and the reason for it (see id.). After disclosure, if a party objects to the judge’s continued participation in the case, the judge has the sole discretion to decide whether to exercise recusal (see Opinion 13-26). We see no reason to deviate from these principles merely because the law clerk’s insurance company has selected the law firm (cf. Opinion 09-141).
Here, too, assuming the judge can be fair and impartial, the judge may preside in matters involving a law firm that is currently representing the judge’s law clerk in a personal injury case but must insulate the law clerk from any involvement with such matters and must fully disclose the relationship. After disclosure, the judge has discretion to preside even if a party objects.1
We note that “the insulation need only continue until the matter is concluded and the law clerk has paid all fees due and owing” (Opinion 13-26).
1 We note that disclosure and insulation of the law clerk is sufficient, even if a party is unrepresented (see Opinion 21-22[A] fn 3).