Opinion 23-80
June 15, 2023
Digest: (1) Where the town court clerk is involved in litigation against their relatives in another court, a town justice need not disclose or disqualify in matters involving the court clerk’s attorney and the relatives’ attorney, but must insulate the court clerk from such matters. (2) The insulation must continue until the representation completely ends, including payment of outstanding legal fees.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 21-21; 16-165; 16-99; 14-171; 14-27; 13-26; 10-43/10-44; People v Moreno, 70 NY2d 403 (1987).
Opinion:
A town justice asks about two conflicts arising from the town court clerk’s involvement in contested civil litigation adverse to other family members in another court. First, the part-time ADA assigned to the town court is, in their private practice, representing the court clerk’s siblings against the court clerk. At this time, the judge does not preside in any case prosecuted by the ADA unless both sides agree to waive the conflict, as it is not “feasible to screen the clerk on roughly 80% of the Court’s docket.”[1] Second, the court clerk has retained their own attorney who occasionally appears in the judge’s court as either retained or assigned counsel. The judge now asks for guidance on their ethics obligations with respect to the ADA and the court clerk’s counsel, including when these obligations will terminate.
A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must act in a manner that promotes public confidence in the judge’s integrity and impartiality (see 22 NYCRR 100.2[A]). Moreover, a judge must disqualify where specifically mandated (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14) and in other proceedings where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). Where objective standards do not mandate disqualification, however, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403, 405 [1987]). Of course, if a judge doubts their own ability to be fair and impartial in a matter, the judge may not preside.
In addressing a judge’s ethical obligations with respect to conflicts for court staff, we have required insulation of the staff member rather than disqualification of the judge. For example, if a lawyer has a familial or attorney/client relationship with the judge’s law clerk or secretary, disclosure and insulation are both necessary (see e.g. Opinions 21-21 [when 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]; 13-26 [when an attorney, who represents the judge’s law clerk or secretary or who is a relative of the judge’s law clerk or secretary, appears in the judge’s court, the judge must disclose and insulate]).
We have recognized that the relationship between a judge and a court’s chief clerk is “decidedly less close” than that between a judge and his/her personal law clerk or secretary (see e.g. Opinions 16-99; 14-27). Accordingly, we have advised that insulation is necessary when a conflict arises involving a court clerk, but we have not mandated disclosure (see e.g. Opinions 16-99 [a judge is “not required to disclose or recuse” in matters involving the chief clerk’s former private law firm employer, but must insulate the chief clerk “from any matters in which he/she was personally involved”]; 16-165 [judge must insulate court clerk from cases in which the court clerk’s spouse is the complainant or prosecuting officer]; 14-171 [judge must insulate court clerk from cases where the court clerk’s second degree relative appears as an attorney]; 10-43/10-44 [where court clerk is a named plaintiff in the town’s insurer’s lawsuit against criminal defendants whose cases are pending in the judge’s court, the judge must insulate the court clerk from any involvement in the cases]).
In our view, the court clerk and the judge do not share a sufficiently close relationship to require disclosure of the court clerk’s underlying conflict. Thus, the inquiring judge must insulate the court clerk from all matters where the ADA actually appears before the court or has had some involvement in the case, but disclosure of the ADA’s private representation of the court clerk’s siblings adverse to the court clerk in a civil matter, or of the connection between the court clerk and the civil litigation, is not required.
As to matters involving the court clerk’s own attorney, the court must likewise insulate the court clerk from all matters where the attorney appears, but again need not disclose. Should a party request the judge’s disqualification after the court clerk has been insulated from a particular case, the judge should consider all relevant factors but the decision to preside or recuse remains solely in the judge’s discretion.
The court clerk must be insulated from matters involving either the ADA or the court clerk’s own attorney until the representation is completely ended, including payment of outstanding legal fees (cf. Opinion 13-26 [where a law clerk has retained counsel on a personal legal matter, “insulation need only continue until the matter is concluded and the law clerk has paid all fees due and owing”]).
We note that if it proves impracticable to insulate the court clerk from cases involving the ADA, the judge may, in their discretion, explore possible alternatives with the assistance of their administrative or supervising judge.
[1] The judge has already disclosed the court clerk’s conflict with the ADA to both the DA’s office and the public defender’s office. Under current practice, “notice of the conflict [is] read into the record on every case and every defendant (and the DA’s office) given an option to remit the conflict or to have the case transferred to a different court.” We note that this practice remains available if insulation of the court clerk is impracticable and no suitable administrative solutions are found.