The Committee on Judicial Ethics responds to written inquiries from New York state’s approximately 3,400 judges, who serve both full- and part-time. The committee’s opinions interpret the Rules Governing Judicial Conduct (22NYCRR, Part 100) and the Code of Judicial Conduct. The committee, comprised of 27 current and retired judges and headed by former associate justice George D. Marlow of the Appellate Division, also answers inquiries about proper campaign conduct from candidates for elective judicial office. The New York Law Journal publishes selected recent opinions of the committee.
Digest: A judge who formerly served as an assistant district attorney is disqualified from presiding over any matters in which he/she was involved in any way, but may preside over other cases involving that office where he/she had absolutely no involvement. The judge must insulate his/her law clerk from any matters in which the law clerk participated as a prosecuting attorney or supervisor and disclose the law clerk’s prior position and current insulation accordingly. Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(E)(1)(b)(i); 100.3(F); Opinions 15-172; 14-10; 14-07; 07-216; 07-105/07-119; 07-30; 07-23; 93-132; People v Moreno, 70 NY2d 403 (1987).
Opinion: The inquiring judge formerly served as an assistant district attorney, and wishes to appoint a supervising assistant district attorney from the same office as his/her law clerk. The judge asks about his/her disclosure and disqualification obligations with respect to that District Attorney’s office in light of the judge’s and his/her prospective law clerk’s former employment. The judge assumes he/she must recuse in matters he/she personally prosecuted or “provided significant legal advice and/or direction to other” assistant district attorneys.
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]). Thus, a judge must disqualify him/herself in specifically enumerated circumstances as required by rule or law (see 22 NYCRR 100.3[E][a]-[f]; Judiciary Law § 14) and in any other proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E]). For example, a judge must disqualify him/herself when the judge knows he/she previously “served as a lawyer in the matter in controversy” (22 NYCRR 100.3[E][b][i]). Where objective standards do not mandate disqualification, however, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 ).
The scope of a judge’s disqualification obligations due to his/her prior employment in a government law office are determined by the degree of authority he/she exercised there (see Opinion 07-23). Here, the judge had some supervisory duties at the DA’s office, but was not a sufficiently high-ranking official to warrant disqualification in all matters during his/her tenure.1
Ordinarily, a former assistant DA is “only barred from adjudicating ‘cases indicted, or begun by an arrest, while the judge was still a member of the district attorney’s staff, … if the judge in any way participated personally in the cases’” (Opinion 14-10 n 3 [citations omitted; emphasis altered]). Similarly, the committee has advised that a former assistant corporation counsel who becomes a judge must disqualify him/herself “in any matter in which the judge participated, in any way, personally or in a supervisory capacity,” during his/her tenure (Opinion 07-30 [emphasis added]). The same principles apply here. Contrary to this judge’s assumptions, his/her obligations are not limited to matters where the judge provided “significant legal advice and/or direction.” Indeed, even “minimal” involvement suffices.
As a result, this judge need not disqualify him/herself from all cases involving the district attorney’s office, but is disqualified from any matter in which he/she participated in any way, including minimally, as a prosecutor or as a supervising attorney. Disqualification on this basis is not subject to remittal (see 22 NYCRR 100.3[E][b][i]; 100.3[F]).
Disqualification is not required, however, merely because the judge’s law clerk held a supervisory position in the same office (see Opinions 15-172; 14-07; 07-105/07-119; 93-132). Where, as here, the law clerk is a former supervisory attorney in a government law office, the judge must insulate the law clerk when the former employer appears in a proceeding in which the law clerk was personally involved as a prosecutor or supervisor (see Opinion 15-172). Additionally, the judge must disclose the law clerk’s prior position and that the law clerk is insulated (see Opinion 15-172). On a request for recusal, the judge should exercise his/her discretion in light of the facts presented (see id.; Opinion 14-07).
1. By contrast, “‘a judge who had been the district attorney should not preside in any criminal case that was pending as a prosecution or as a matter under investigation by the district attorney’s office’ during the judge’s tenure as district attorney” (Opinion 14-10 [citation omitted]). Disqualification, in light of a judge’s former position as the District Attorney, “is required for all such cases charged or investigated during the judge’s prosecutorial tenure” because he/she was the official in charge and is deemed to be directly or indirectly involved in each matter of the office (Opinion 14-10; see also Opinions 15-172; 14-07; 07-216).