Opinion: 99-72

September 14, 1999

Digest: (1) Where it is not possible to insulate the court clerk from handling cases involving the clerk's spouse, who is a State Trooper, the court should transfer such cases to another court. (2) A judge should exercise recusal in cases where an appearance is being made by the judge's former law firm and (a) not more than two-years have elapsed since the judge left the firm, or (b) the judge had worked on the matter, or (c) the partner or associate appearing worked on the matter while the judge was with the law firm. (3) The co-judge is not precluded from presiding in any case of the inquiring judge's former law firm.

Rule:  22 NYCRR 100.2(C); 100.3(E)(1); 100.3(E)(1)(b)(i);
           100.3(E)(1)(b)(ii); 100.3(F); 100.6(B)(3);
           Opinions 94-05 (Vol. XII); 94-82 (Vol. XII).


            A part-time judge seeks the Committee's guidance in two areas. The first involves the clerk of the court. As stated by the judge:

Our court has two part time justices and one full time court clerk. The clerk is the sole employee in the office during regular business hours. The clerk is married to a State Trooper who issues tickets and accusatory instruments in our court. I am mindful that as a general rule, the justices are not disqualified from hearing matters involving the Trooper as long as the clerk is insulated from all proceedings in the matter and there is full disclosure. Unfortunately, this remedy is not realistic in a court where the clerk is the sole employee present during business hours. Our clerk is the only one staffing the telephone all day and she opens all the mail. It is virtually impossible to insulate her from all contact in matters where her spouse is involved. I would appreciate the Committee's guidance as to whether under these circumstances we must disqualify ourselves and transfer the Trooper's cases to another jurisdiction or whether we can continue to hear and dispose of the case as long as full disclosure is made.
            The inquiring judge is correct that ordinarily insulation of the court clerk from handling matters in which the clerk's spouse is involved, rather than disqualification of the judges of the court, is the appropriate step that should be taken. The purpose of such insulation is to avoid the conveyance of any impression that any person is "in a special position to influence the judge." 22 NYCRR 100.2(C); see e.g. Opinion 94-82 (Vol. XII). But, here, the creation of such a barrier between clerk and case is "virtually impossible" for the reasons stated in the inquiry. Under such circumstances, an alternate remedy would be the transfer of the spouse to a position in the State Police that would not be likely to result in appearances in the clerk's court. That, of course, is beyond the authority of the court. Thus, it appears to the Committee that absent a change of assignment of the spouse, the only feasible course is for the judges of the court to disqualify themselves and transfer the officer's cases to another court. In this way, the occasion for any questioning of impartiality will be obviated. 22 NYCRR 100.3(E)(1).

            The second area of concern expressed by the judge relates to presiding over certain cases involving the town and the town attorney. As reported by the judge, he/she has been a partner in a law firm that has been hired by the town as its general counsel. One of the partners is the town attorney. Whenever the town had a proceeding in the court, the matter would be prosecuted by a town employee, without the aid of an attorney, and would be heard by the co-judge. The inquiring judge is now leaving the law firm and seeks advice concerning (1) presiding over cases where town employees act as prosecutors (2) presiding over cases in which the town employs special counsel not affiliated with the judge's former law firm (3) the point at which members of the former law firm may appear before the co-judge, and (4) the point at which members of the former law firm may appear before the inquirer.

            As to the first two situations, we perceive no impediment to the judge presiding in cases in which town employees or special counsel not affiliated with the judge's former law firm, appear on behalf of the town. Since there is no apparent nexus between the judge and the town employees or special counsel that might call into question the judge's impartiality, such appearances do not give rise to an occasion for disqualification under section 100.3(E)(1) of the Rules Governing Judicial Conduct. Nor is there any bar to the judge's former law firm appearing before the co-judge. Section 100.6(B)(3) prevents a part-time judge's law partner or associates from appearing in the judge's court. But, in this instance, the judge is no longer connected with the firm, and thus its lawyers may appear before the co-judge.

            However, with respect to the appearances of the former law firm before the inquiring judge, the Committee has previously expressed the opinion that a judge's impartiality might reasonably be questioned in such instances in light of the presumed close professional and personal relationship between lawyers practicing together, and therefore advised that for a two-year period the judge should exercise recusal in any matter in which the firm appears subject to remittal by all parties. Opinion 94-05 (Vol. XII); 22 NYCRR 100.3(F). Of course, if the judge had served as a lawyer in the matter, there can be no remittal of recusal (22 NYCRR 100.3[E][1][b][i]; 100.3[F]), nor is the period of disqualification limited to two years if "a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter" now before the judge. 22 NYCRR 100.3(E)(1)(b)(ii).