Must a D.C. judge recuse when a former law clerk appears as counsel?

Plain-English summary

The Committee considered whether a judge must step aside when a former law clerk appears before that judge. Under Code of Judicial Conduct Rule 2.11(A), disqualification turns on whether the judge's impartiality might reasonably be questioned. The opinion says a former clerk's appearance alone does not require automatic, permanent recusal.

The Committee nevertheless recommended that judges disqualify themselves when the lawyer served as their clerk during the previous year. It called that period a suggested rule of thumb, not a conclusion that every appearance within one year violates Rule 2.11(A). A close, continuing relationship may call for longer disqualification under the same impartiality standard.

The opinion also instructs judges to ensure their clerks understand the restrictions that follow employment. It cites the D.C. Courts' Personnel Policy #1376, which bars a former clerk from practicing as an attorney in a case in which the clerk was involved while employed by the courts. The opinion says the duty not to use or disclose confidential information acquired in chambers continues after the clerkship.

In practice

Under the opinion's 2014 analysis, the recommended one-year period addresses the appearance concern caused by a recent, trusted working relationship. It leaves recusal beyond that period to the particular relationship and the objective Rule 2.11(A) test. Former clerks' involvement in a case during their court employment and their possession of confidential information raise separate restrictions.

Common questions

Q: Does every appearance by a former law clerk require the judge to recuse?

A: No. Opinion No. 13 rejects a permanent automatic disqualification based solely on the past clerkship.

Q: What does the opinion say about the first year after a clerkship?

A: It recommends that the judge disqualify themselves when the former clerk appears during that year, while describing the year as a rule of thumb rather than a fixed legal test.

Q: Can recusal remain appropriate after one year?

A: Yes. The opinion says a comparably close, continuing relationship may cause a fully informed objective observer to doubt the judge's impartiality even after a year.

Q: May a former clerk act as counsel in a case they worked on during the clerkship?

A: No. The opinion cites D.C. Courts Personnel Policy #1376, which prohibits practice as an attorney in a case the former employee was involved in while working for the courts.

Background and rules framework

The opinion interprets Rule 2.11(A)'s impartiality test and Rule 1.2's appearance-of-impropriety principle. It also discusses Rule 2.11(C)'s waiver process and the difficulty of disclosing the details of a chambers relationship. The opinion cites D.C. Courts Personnel Policy #1376 for cases handled by former court employees.

Citations and references

D.C. Code of Judicial Conduct:

• Rule 2.11(A), disqualification when impartiality might reasonably be questioned.
• Rule 1.2 and Comment 5, public confidence and appearance of impropriety.
• Rule 2.11(C), waiver of disqualification.

Court policy:

• D.C. Courts Personnel Policy #1376, former employee practice in a case handled during court employment.

Cases:

• Coulter v. Gerald Family Care, P.C., 964 A.2d 170 (D.C. 2009), objective appearance standard.
• In re M.C., 8 A.3d 1215 (D.C. 2010), informed observer test.
• In re Martinez-Catala, 129 F.3d 213 (1st Cir. 1997), former clerks' later appearances.

Other opinions cited:

• Delaware Judicial Ethics Advisory Committee JEAC 2009-1, no automatic recusal for a former clerk's appearance.
• New York Advisory Committee on Judicial Ethics Opinion 08-107, appearance concern soon after a clerkship.

See also

• NH Judicial Ethics Op. 2012-ACJE-03: Former marital master recusal

Source

• Landing page: D.C. Code of Judicial Conduct and advisory opinions
• Original PDF: Advisory Opinion No. 13