New York State Bar Association
Committee on Professional Ethics
Opinion 985 (10/8/13)
Topic: Former law clerk appearing before judge who employed clerk
Digest: A lawyer is permitted to appear, and assist others who
appear, before a judge by whom the lawyer was employed, on matters unless the
lawyer had substantial personal participation in the matter.
Rules: 1.12(b)(2)
FACTS
1. The
inquiring lawyer has served as a law clerk of a judge in the past. Now the lawyer has opportunities to advise
and provide legal analysis to clients or other lawyers in matters before the
judge for whom the lawyer had worked.
None of the opportunities relate to any matters before the judge while
the lawyer worked for the judge.
QUESTION
2. May a lawyer who formerly served as a legal
clerk, appear, or assist those who appear, before the judge who had employed
the lawyer?
3. If prohibited from appearing before the judge for whom the lawyer
worked, may the lawyer appear before judges of the same court for whom the
lawyer did not work?
OPINION
4. The only Rule of the New York Rules of
Professional Conduct that addresses this matter is Rule 1.12. It states in relevant part, “...unless all
parties to the proceeding give informed consent, confirmed in writing, a lawyer
shall not represent anyone in connection with a matter in which the lawyer
participated personally and substantially as a law clerk to a judge...” Rule
1.12(b)(2).
5. In order to trigger the requirement for informed consent, the
matter must be one in which the law clerk had substantial personal
involvement. Thus absent written
informed consent from the parties, confirmed in writing, a former law clerk is
prohibited by this Rule from appearing before the judge in such a matter.1, 2
6. In the present inquiry, the lawyer asks only whether it is
permissible to appear or advise others who will appear before the judge for
whom the lawyer worked in new matters, that is, those matters which had
not been before the judge while the lawyer was employed by the judge.
7. The application of these principles is illustrated in the Second
Department’s decision, In re Coleman, 69 AD3d 846 (2010). There the
court held that a lawyer who had served as supervising attorney in the law
department supporting the Surrogate's Court was not disqualified from appearing
in that court on matters which had been handled by the lawyer’s former law
department. The court held that the
record did not support a finding that “the former government attorney was
“personally involved to an important, material degree, in the investigati[on]
or deliberative processes regarding the transactions or facts in question” (In
re Coleman, at 849).
8. Given that the former law clerk is not prohibited by Rule 1.12
from appearing before the judge who employed the lawyer, the lawyer is
permitted to appear before other judges of the same court as the judge for whom
the lawyer worked.
Conclusion
9. A lawyer is permitted to appear, and assist
others who appear, before a judge by whom the lawyer was employed, on matters
unless the lawyer had substantial personal participation in the matter.
(25-13)
1 Whether the Judge has any obligations, or is required
to consent to the former law clerk’s appearance before the Judge, is a question
under the Code of Judicial Conduct; this Committee expresses no opinion about
the application or interpretation of the Code of Judicial Conduct.
2 What constitutes “substantial and personal
involvement” has been discussed by this Committee in several opinions. For example, Opinion 748 (2001) sets forth
factors which might require disqualification of a government prosecutor from
representing a criminal defendant who was investigated and prosecuted while the
lawyer was employed in the prosecutor's office. That Opinion states, “DR
9-101(B) (the predecessor to Rule 1.12 (b)) made clear that disqualification
must be based on the lawyer's personal participation to a significant extent.” The factors to be considered in analyzing
whether the involvement of a lawyer was personal and substantial include
serving more than a supervisory role, having responsibility for more than mere
ministerial aspects of a matter, assisting in the research and writing of
decisions on the merits and interaction with parties by which the clerk might
have had access to confidential information.
