Opinion 25-105
September 10, 2025
Digest: A new full-time judge who previously served as a court attorney to another judge in the same county may preside in cases in which he/she previously served as a court attorney, provided the judge can be fair and impartial.
Rules: Judiciary Law § 14; 22 NYCRR pt 100, Preamble; 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)–(f); Opinions 24-40; 22-177; 22-131; 20-73; 19-05; 18-157; 18-83; 14-136; 91-73; People v Moreno, 70 NY2d 403 (1987).
Opinion:
A new multi-bench county court judge previously served as court attorney to another judge in the same county. The judge asks if it is permissible to preside in Family Court matters involving parties who appeared before the court during the inquirer’s prior tenure as court attorney. In that capacity, the inquirer regularly assisted his/her judge by conducting settlement conferences, drafting or outlining decisions on motions for the judge’s consideration, briefing the judge on pleadings, and the like.
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 where required by rule or law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14) and in any other proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).
The question presented here appears to be a matter of first impression. This is perhaps surprising, given that prior service as a law clerk or court attorney is a common path to judicial service. While we have a line of precedents concerning concurrent employment of a part-time judge as a law clerk, court attorney, or court clerk (see e.g. Opinions 22-131; 19-05), the question before us involves past employment – that is, the impact of a new judge’s fully concluded former employment as a court attorney. We will first discuss why the concurrent employment precedents do not govern here, and then address the applicable standard.
Concurrent vs Past Employment
In our view, concurrent employment implicates somewhat different ethical concerns from fully concluded past employment. Our opinions reflect that it may be difficult, if not impossible, for a part-time judge who is concurrently employed in a non-judicial capacity to be seen as exercising the requisite level of judicial independence in certain circumstances, given that the judge has some interests aligned with the outside employer. For example, the question of whether staff attorneys at Legal Aid are considered “associates” under Part 100 is answered differently depending on whether the judge’s Legal Aid employment is ongoing (compare Opinion 14-136 with Opinions 22-177; 20-73).
Most to the point here, if we applied the “extra-judicial source” standard with respect to a judge’s past employment, then a judge who is a former prosecutor might be disqualified in all criminal matters involving defendants he/she previously prosecuted, even if the new charges are entirely unrelated to the original charges. This is not the rule (see e.g. Opinions 24-40; 91-73).
Applicable Standard
In deciding the applicable standard, we are mindful that the Rules Governing Judicial Conduct are “rules of reason” to be applied “in the context of all relevant circumstances” (22 NYCRR pt 100, Preamble). We note that the new full-time judge here is no longer a court employee, but a public official duly selected by the voters or their representatives as provided by law.[1] Moreover, we have recognized that a judge’s “specialized learning, experience and judicial discipline” render him/her “uniquely capable of distinguishing the issues and of making an objective determination based upon appropriate legal criteria, despite his/her awareness of facts that cannot properly be relied upon in making the decision” (Opinion 18-157 [internal quotation marks and citation omitted]; see also People v Moreno, 70 NY2d 403, 406 [1987]).
Under the circumstances, we can see no appearance of impropriety in the inquirer providing nearly uninterrupted service in cases where he/she previously participated in a neutral role as a court attorney under the direction and control of a judge, and will now step up as the neutral and independent judge vested with that role’s heavy powers and responsibilities after taking and filing his/her oath of office. Accordingly, we leave it to the judge’s sole discretion to determine whether he/she can be fair and impartial in cases where he/she previously served as a court attorney.
[1] We thus decline to follow Opinion 18-83, which involved a former law clerk who was subsequently hired or appointed as a court attorney-referee.