Opinion 25-119
September 10, 2025
Digest: A judge must insulate his/her law clerk from any case in which the law clerk was personally involved as an attorney, no matter how minimally, and must disclose the reasons for the insulation. That insulation cannot be waived or remitted and does not expire. Thereafter, if a party asks the judge to recuse, the judge must exercise his/her discretion in light of the facts of the particular case in determining whether recusal is warranted.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 25-25; 19-110; 19-82; 19-72; 15-147; 09-27.
Opinion:
As relevant here, the inquiring judge is presiding in a criminal case where the defendant faces charges arising out of his/her interactions with a city police officer. Shortly before trial was scheduled to begin, defense counsel revealed that the judge’s new law clerk, during his/her prior employment as corporation counsel, was present when the police officer was interviewed by another law enforcement agency investigating the incident.[1] On learning of this connection, the judge promptly insulated the law clerk from the case. Defense counsel now seeks the judge’s recusal based on the law clerk’s prior involvement. The judge explains that his/her new law clerk never disclosed the connection and thus assisted the judge with legal research and drafting on two decisions. The judge does not question the legal correctness of those decisions, as the judge personally directed and guided his/her “far less experience[d]” law clerk. The judge is confident that he/she can be fair and impartial but asks if recusal is required under the circumstances.
A judge must always avoid 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]). Thus, a judge must disqualify in any matter where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).
“Where a judge’s staff member has a conflict, it is ordinarily sufficient to insulate the staff member and disclose the insulation” (Opinion 19-72). We have advised that a judge must insulate his/her newly hired law clerk from cases in which the law clerk was personally involved during the law clerk’s prior public or private employment; must disclose the reason for the insulation to all parties and their attorneys; and the insulation cannot be waived or remitted and does not expire (see Opinion 25-25; see also e.g. Opinions 19-110; 19-82). In Opinion 19-110 (citations omitted), we summarized “the two key principles” for determining when insulation is required based on a law clerk’s former employment:
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 . . . . 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.
It is clear that this judge’s law clerk must be insulated from any involvement in this criminal case due to his/her presence, as corporation counsel, during one portion of a law enforcement agency’s investigation of the incident that gave rise to the case. However, the judge’s law clerk failed to disclose that he/she was present at the city police officer’s interview and the judge was otherwise unaware of it. Nor does the judge question the legal correctness of his/her decisions (cf. Opinion 15-147).
We conclude that, going forward, the judge must insulate his/her law clerk from any future involvement in the criminal case and must disclose the reasons for the insulation to the parties and their attorneys. This insulation cannot be waived or remitted and does not expire. Thereafter, as a matter of ethics, the inquiring judge has sole discretion whether to grant or deny the defense counsel’s motion to recuse in light of the facts of this case. The inquiring judge “is in the best position to assess whether his/her impartiality might reasonably be questioned by taking into account matters such as the overall effectiveness of insulating the law clerk and any other relevant circumstances” (Opinion 09-27 [citation omitted]).
[1] Defense counsel apparently spotted the name of the new law clerk when re-reviewing a transcript that had been among many papers attached to a motion about a year earlier. At that time, the judge had a different law clerk; the identity of those merely present during the interview “was not relevant to the issues to be decided” and clearly made no lasting impression.