Committee on Judicial Ethics — Appointing Former Law Clerks: Joint Opinion 10-107/10-158

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NYS Advisory Committee on Judicial Ethics

Appointing Former Law Clerks

Referee Positions

Joint Opinion 10-107/10-158

Background: Two inquiring judges asked whether they can appoint former law clerks to certain positions after the clerks retire. The first seeks to appoint a former law clerk as a court examiner in Article 81 guardianship matters. The second seeks to appoint a former law clerk as a referee to supervise disclosure pursuant to CPLR § 3104(a), as well as a referee to hear and report findings of fact and conclusions of law pursuant to the Surrogates Court Procedure Act.

Opinion: (1) Provided that the law clerk is qualified, a judge may appoint a former law clerk to Part 36 positions, except where the case was pending before the judge during the law clerk’s term of employment. Further, should the law clerk come before his former employer within one year of after his employment, the judge should disclose that employment relationship, but has the discretion to grant or deny any requests for recusal. (2) Similarly, if a law clerk is qualified a judge may appoint a former law clerk as a referee under the Surrogates Court Procedure Act, as well as a disclosure referee. The judge need not, in this instance, disclose the former employment relationship.