From Advisory Committee on Judicial Ethics: Opinion 08-134 (Sept. 11, 2008)

[Originally published in NYPRR April 2009]

From time to time, NYPRR will publish an Opinion of the Advisory Committee on Judicial Ethics. The Opinions published are those selected by Justice George D. Marlow, Committee Chair, and Jeremy R. Feinberg, who serves among the Committee’s Counsel. Permission to reprint the Opinion below was requested by NYPRR because of its significance to New York lawyers who appear before the Courts.

The Advisory Committee on Judicial Ethics (www.nycourts.gov/ip/acje) responds to written inquiries from New York State’s full- and part-time judges, candidates for elective judicial office, and quasi-judicial officials such as support magistrates, court attorney-referees, and judicial hearing officers. The committee’s opinions interpret the Rules Governing Judicial Conduct [22 NYCRR Part 100], the Code of Judicial Conduct and Part 36 of the Rules of the Chief Judge [22 NYCRR Part 36]. Justice George D. Marlow chairs the committee of 26 judges, and Maryrita Dobiel, Esq. is its Chief Counsel.

Opinion 08-134 (Sept. 11, 2008)

DIGEST: When the prior employer of a recently hired court attorney appears on a case with which the court attorney was previously involved, and the court attorney performs work for the presiding judge, the judge must insulate the court attorney and disclose such insulation, and the underlying reason for it, to the parties and their attorneys. Thereafter, if a party asks the judge to recuse him/herself, the judge must exercise his/her discretion in light of the facts of the particular case in determining whether recusal is warranted.

RULES: 22 NYCRR 100.2; 100.2(a); 100.3(E)(1); 100.6(B)(3); Joint Opinion 07-105/119; Opinions 99-91 (Vol. XVIII); 99-48 (Vol. XVII).

OPINION: A judge advises that three court attorneys work as law clerks for the judges in his/her court. Although each one works “primarily” for a particular judge, the inquiring judge states that each court attorney also performs work for the other judges. One of the judges recently hired a new court attorney who previously was employed at a large law firm that regularly appears in the judge’s court. The new court attorney “acted as counsel for parties and as attorney for the child in numerous cases” while so employed. The court attorney’s former employer will continue to appear in the court on both new matters in which the newly hired court attorney had no involvement, as well as in pending matters in which the newly hired court attorney was involved. The inquiring judge asks whether all three judges must now recuse themselves in matters where the court attorney’s former law firm appears as counsel.

A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities [see 22 NYCRR 100.2] and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary [see 22 NYCRR 100.2[A]]. A judge, therefore, must disqualify him/herself in any proceeding in which his/her impartiality might reasonably be questioned [see 22 NYCRR 100.3[E][1]].

In Joint Opinion 07-105/119, the Committee advised that a judge who can be impartial need not disqualify him/herself when a law clerk’s former employer appears before the judge. However, if the law clerk was involved in the case on which the law clerk’s former employer is appearing, the judge must insulate the law clerk and disclose to the parties and their attorneys the law clerk’s prior employment and involvement in the case and that he/she has insulated the law clerk. Thereafter, if a party asks the judge to exercise recusal, the judge should exercise his/her discretion in light of the facts presented in determining whether recusal is warranted [see id.]. In the Committee’s view, the judge is in the best position to assess whether his/her impartiality might reasonably be questioned [see 22 NYCRR 100.3[E][1]] by taking into account matters such as the overall effectiveness of insulating the law clerk and any other relevant circumstances [see Joint Opinion 07-105/119]. Therefore, the judge who hired the new court attorney — the subject of the present inquiry — must follow the same procedure when the new court attorney’s prior employer appears before the judge.

On the other hand, the inquiring judge in the present inquiry is not the judge who hired the new court attorney. Rather, he/she is the hiring judge’s colleague and asks about his/her own recusal obligation and that of another co-judge when the recently hired court attorney’s prior employer appears before any of them. In the Committee’s view, although the newly hired court attorney works “primarily” for the hiring judge, if he/she also performs work for the other judges in the court, they also must follow the procedure set forth above when the new court attorney’s prior employer appears before any of them.

In two earlier opinions [see Opinion 99-91(Vol. XVIII); 99-48 (Vol. XVII)], the Committee had advised that a judge must, for a period of two years after hiring a law clerk, insulate the law clerk from every case where the law clerk’s prior employer appears, including when the law clerk had no involvement in the case before the court. The Committee, however, did not impose the same requirement in Opinion 07-105/119 and does not in the present opinion as well. To the extent, therefore, that the Committee’s conclusions in Opinion 07-105/119 and the present inquiry are at variance with Opinions 99-91 (Vol. XVIII) and 99-48 (Vol. XVII) with respect to insulating a law clerk under such circumstances, those latter two opinions are overruled.

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NYPRR Editor