Judicial Ethics Opinion 20-130
On the extraordinary circumstances presented, this judge must insulate their law clerk from matters involving a particular family.
January 22, 2021 at 05:32 AM
4 minute read
The Advisory Committee on Judicial Ethics responds to written inquiries from New York state's approximately 3,600 judges and justices, as well as hundreds of judicial hearing officers, support magistrates, court attorney-referees, and judicial candidates (both judges and non-judges seeking election to judicial office). The committee interprets the Rules Governing Judicial Conduct (22 NYCRR Part 100) and, to the extent applicable, the Code of Judicial Conduct. The committee consists of 27 current and retired judges, and is co-chaired by the Honorable Margaret Walsh, a justice of the supreme court, and the Honorable Lillian Wan, a court of claims judge and acting supreme court justice.
We respond to your inquiry (20-130) about insulating your law clerk. For approximately a decade, you have presided in a variety of proceedings involving a particular family. You note the family "is litigious, often commencing new proceedings (modification of custody/visitation, or violation/enforcement proceedings) annually or bi-annually." Your current law clerk previously had certain connections with that family as an attorney in private practice: (a) he/she served as the attorney of record for one parent in a Family Court proceeding and related Supreme Court enforcement proceedings, each of which reached their "natural conclusion" more than four years ago; (b) his/her client was awarded attorney's fees from the other parent, which were never paid; [1] and (c) the other parent sued the law clerk and his/her client, although the lawsuit was dismissed with prejudice four years ago. On hiring the law clerk, you disclosed the law clerk's prior representation. One parent, who regularly appears without counsel, objected to the law clerk's participation. Since then, you have insulated the law clerk from all matters involving the family. You note that all the current cases involving this family were filed after the law clerk had ceased practicing law; thus, the law clerk had no personal involvement as an attorney in any of the cases currently before you. Accordingly, you ask if it is mandatory to insulate the law clerk from later-filed court proceedings involving this family, and (if so) for how long.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary's integrity and impartiality (see 22 NYCRR 100.2[A]).
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