Opinion 96-125

December 12, 1996

NOTE: This opinion has been modified by Joint Opinion 07-105/07-119 to the extent it is inconsistent or silent on the topic of recusal.

Digest:         (1) A judge need not disqualify himself/herself in cases in which the judge’s law clerk previously was involved while in private practice. However, the law clerk cannot participate in those cases, and it is recommended that the judge disclose the law clerk’s prior involvement. (2) The judge should not permit the law clerk to practice law in the court in which the judge presides. (3) The judge’s law clerk may practice in local criminal courts from which appeals are taken to the judge’s court, provided the judge recuses himself/ herself from any case in which the law clerk was involved, if practicable. If recusal is impracticable, the law clerk should not participate in the handling of the appeal by the judge.

Rules:          22 NYCRR 100.3 (E)(1), 100.1, and 100.2 (b); Opinions 93-132, 93-115.

Opinion:

         A County/Surrogate Court judge inquires whether disqualification is mandated in a proceeding in which the judge’s part-time law clerk was formerly an attorney of record for one of the parties. The judge further asks whether the part-time law clerk may practice in Surrogate’s Court as an attorney of record, if the judge recuses himself/herself from the law clerk’s cases. The judge also inquires whether the part-time law clerk may practice in the local criminal courts in-as-much as appeals are taken from those courts to the judge’s court.

         In the opinion of the Committee, the judge need not disqualify himself/herself in cases in which the part-time law clerk had been involved as an attorney in private practice. However, the law clerk cannot participate in those cases, and it is recommended that the judge disclose to the parties the law clerk’s prior involvement. Opinion 93-132

         As to practicing law in the judge’s court, the Rules Governing Judicial Conduct provide that a judge must maintain standards so that the integrity and independence of the judiciary will be preserved, avoid the appearance of impropriety and not permit others to convey the impression that they are in a special position to influence the judge. 22 NYCRR 100.1; 100.2. In this instance, the independence of the judiciary would not be served and the appearance of impropriety would not be avoided by permitting a part-time law clerk to practice law in a court in which the law clerk serves. The appearance of partiality is too strong to overcome by recusal of the sitting judge. Therefore, the judge should not permit the law clerk to practice in the judge’s court.

         As to practicing law in local criminal courts, the judge need not prohibit such practice. Although the law clerk would not be permitted to appear as an attorney in appeals to the judge’s court from such cases, any appeals from cases in which the law clerk had been involved as a practicing attorney should be handled by another judge, if practicable. In any event, the judge must not allow the law clerk to be involved in any way whatsoever in the consideration of such an appeal by the judge, should recusal be impracticable. Opinion 92-115.