Opinion 25-93

June 26, 2025

Digest:  A judge may appoint the child of a judicial hearing officer as his/her full-time law clerk or court attorney, provided the appointment is made impartially and on the basis of merit.  There is no ethical impropriety even if the judge later assumes judicial office in the same court where the judicial hearing officer is assigned.

Rules:   22 NYCRR 8.1; 100.2; 100.2(A); 100.3(C)(3); Opinion 15-132.

Opinion:

After interviewing multiple applicants for a personally appointed court attorney position, the inquiring judge found one applicant highly qualified and would like to hire him/her.  However, that applicant is also the child of a retired judge who is designated to serve as a judicial hearing officer (JHO) in Supreme Court within the same county where the judge presides.  The inquiring judge does not preside in Supreme Court, but in a trial court of more limited jurisdiction.  The judge asks if he/she may hire the child of this Supreme Court JHO, and if this appointment will present any ethical impediments in the event the judge is considered for appointment as an Acting Justice of the Supreme Court.

A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  Thus, a judge may not make unnecessary appointments and must “exercise the power of appointment impartially and on the basis of merit” and “avoid nepotism and favoritism” (22 NYCRR 100.3[C][3]).  Further, a judge is prohibited from appointing to any state-paid position in the Unified Court System “a relative within the fourth degree of relationship, or the spouse of such relative, of any judge or the spouse of such judge of the same court within the county in which the appointment is to be made” (22 NYCRR 8.1).

          While this inquiry presents a question of first impression for us, we conclude it is not prohibited by the Rules Governing Judicial Conduct.  Initially, we note that Rule 8.1 is inapplicable here, because the prospective court attorney is not a relative of “any judge or the spouse of such judge of the same court.”  Instead, he/she is a relative of a JHO, rather than a judge, and that JHO presides in Supreme Court, rather than in the court of more limited jurisdiction where the inquiring judge presides.  The other specific limitations contained in Section 100.3(C)(3) are also inapplicable, as the prospective court attorney is not related to the inquiring judge by blood or marriage.

          Although the Rules Governing Judicial Conduct “place certain limits on the appointment of a sitting judge’s relatives” (Opinion 15-132), a judge may generally hire or appoint other individuals to positions within the court system, provided it is otherwise permissible to do so.  For example, we have said a judge may hire his/her current law clerk’s spouse as the judge’s secretary, provided the spouse is qualified for such appointment (see id.).

          Here, after conducting interviews, the inquiring judge has found the prospective appointee to be “highly qualified” for the position of court attorney.  Thus, we conclude that the judge may appoint the child of a JHO to serve as the judge’s personal appointee law clerk/court attorney, provided the appointment is made “impartially and on the basis of merit” (22 NYCRR 100.3[C][3]).  There is no ethical impropriety even if the judge later assumes judicial office in the same court where the JHO is assigned.  Accordingly, we perceive no ethical reason why the applicant, if appointed, may not continue in the position if the inquiring judge later ascends to higher judicial office.