Opinion 26-90
May 7, 2026
Digest: (1) For one year after a law clerk leaves a
judge’s employ, the judge must disclose the relationship when the former law
clerk appears before him/her.
(2) During this one-year period, disclosure is required when an appellate court
judge’s former law clerk filed a brief that is part of the record on appeal, even
if the former law clerk will not otherwise have any
involvement whatsoever in the appeal. If disclosure is not practicable,
the judge must disqualify from the matter.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 24-181; 23-107; 15-58; 14-27; 10-107/10-158.
Opinion:
The inquiring appellate court judge’s former law clerk left the judge’s chambers within the last year and accepted public sector employment as a staff attorney in a governmental law office. In the new job, the former law clerk filed a brief in a particular matter. That matter has now been appealed to the inquiring judge’s court. The judge’s former law clerk is not listed as counsel of record on the pending appeal, but the judge’s court will consider the lower-court brief that the former law clerk submitted as part of the appellate record. Thus, although the former law clerk is unlikely to argue the case, he/she might accompany arguing counsel. The judge asks if recusal is required and, if so, whether there may be an exception based on certain practical difficulties anticipated in this particular matter.
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]). Therefore, a judge must disqualify in any proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).
We have recognized that the relationship between a judge and a law clerk is one of “particular trust and confidence” and involves generally “the kind of professional interchange that might be found between long-time colleagues in a law firm” (Opinion 14-27 [citation omitted]). Accordingly, for a one-year period, if the judge’s former court attorney or law clerk appears before the judge, the judge must fully disclose the prior relationship. After disclosure, the judge has the discretion to grant or deny any subsequent request for recusal based on all the facts of the relationship and the particular case (see e.g. Opinions 14-27; 10-107/10-158).
In general, this approach applies to both public sector and private sector employment, and we hereby amend our prior opinions as needed to make the current standard clear.[1] Where the former law clerk has joined a private law firm, the disclosure requirement extends to his/her colleagues at the firm, unless the law firm fully insulates the law clerk from all cases before the judge (see Opinion 14-27). We have carved out one exception: Where the former law clerk heads the District Attorney’s office, the judge is disqualified, subject to remittal, in all matters involving that office which are directly or indirectly under the former law clerk’s supervision during the applicable one-year period (see Opinions 15-58 [former law clerk is the District Attorney]; 24-181 [former law clerk has “general oversight responsibility for the entire office” as Chief Assistant District Attorney]).
Applying these principles, we conclude that the one-year disclosure requirement, with discretionary recusal, applies when an appellate judge’s former law clerk is employed as a staff attorney in a government law office. Here, although the former law clerk may not have any direct personal involvement in the appeal before the judge’s court, he/she nonetheless filed a brief that is part of the record on appeal. In our view, that is sufficient to trigger the disclosure requirement, since the law clerk left the judge’s employ less than one year ago. Accordingly, the judge must advise all parties of the connection and disclose the former employment relationship. After such disclosure, the judge has the discretion to grant or deny a party’s request that he/she recuse him/herself based on the facts in the particular case.
As usual where disclosure is mandated, “if disclosure is impracticable in the judge’s court, the judge must disqualify” (Opinion 23-107).
[1] Where appropriate, we will reaffirm, clarify or update existing notes recognizing prior modifications.