This responds to your inquiry (21-42) asking if you may permit your court attorney, a former assistant district attorney, to work on two criminal cases that originated in the District Attorney’s office during the court attorney’s tenure. In one instance, the court attorney made a single appearance in the case, while in the other, the court attorney had absolutely no involvement. You have also asked about your recusal obligations if your court attorney is not permitted to work on these cases.
A judge must insulate their law clerk from all cases in which the law clerk had any personal involvement as an attorney during the law clerk’s prior employment, including in a supervisory capacity; this insulation neither expires, nor may it be waived nor remitted (see e.g. Opinions 19-82; 18-182; 15-233; 15-211). The judge must disclose the law clerk’s insulation and explain its reason, but may thereafter preside, provided the judge can be fair and impartial. On application for recusal, the judge should exercise discretion in light of the facts presented, as the judge is in the best position to determine whether in that particular proceeding the judge’s impartiality might reasonably be questioned. However, the judge ordinarily need not insulate the law clerk from other matters involving the law clerk’s former employer, in which the law clerk had absolutely no involvement.
