Opinion 25-40

March 27, 2025

Digest:  A judge must insulate their court attorney from all matters in which the court attorney had any personal involvement as a lawyer, but need not disqualify, provided the judge can be fair and impartial.

Rules:   Judiciary Law § 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 101.1; Opinions 23-96; 21-42; 20-130; 18-37.

Opinion:     

          The inquiring judge hired a court attorney who previously represented individuals in the judge’s court as an assistant public defender.  Some of the court attorney’s former clients have cases pending or have new filings with the court.  The judge asks what to do in cases where the court attorney had “personally represented a party.”  The judge further asks us to consider People v Thornton, 213 AD3d 987 (3d Dept 2023) in our response.

          A judge must always avoid the appearance of impropriety (see 22 NYCRR 100.2) and must act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  Thus, a judge must disqualify in a proceeding in which the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).

          A judge is not automatically disqualified from presiding over a case in which the judge’s law clerk was personally involved as an attorney—either directly or as supervisor—but must insulate the law clerk from the case and disclose the law clerk’s involvement and insulation to the parties (see Opinions 23-96; 21-42).  Insulation on this basis cannot be waived or remitted, and does not expire (id.).

          Conversely, absent unusual factors creating an appearance of impropriety, a judge ordinarily need not insulate their law clerk from cases in which the law clerk had absolutely no involvement, even if the case involves the law clerk’s former employer or a former client (compare Opinion 18-37 [usual rule] with Opinion 20-130 [exceptional circumstances]).

          The same principles apply here.  Accordingly, we conclude this judge must insulate their court attorney from all matters in which the court attorney had any personal involvement as a lawyer, but need not disqualify, provided the judge can be fair and impartial.

          We cannot address legal questions (see 22 NYCRR 101.1; Judiciary Law § 212[2][l]) and as such cannot comment on the applicability of the case referenced by the inquirer.