Can a New York lawyer who used to be a judge's law clerk appear, or help others appear, before that same judge after leaving the clerkship?

Plain-English summary

A lawyer who had served as a judge's law clerk asked whether he could now advise and represent clients, or assist other lawyers, in matters before that same judge. None of the new matters had been before the judge while the lawyer was clerking. The opinion identifies Rule 1.12 as the only rule that addresses the question.

The opinion reads Rule 1.12(b)(2) to bar a former law clerk, absent all parties' informed consent confirmed in writing, from representing anyone "in connection with a matter in which the lawyer participated personally and substantially as a law clerk to a judge." Because the trigger is personal and substantial involvement in the specific matter, the rule does not reach new matters that were not before the judge during the clerkship. The opinion illustrates the personal-and-substantial standard with In re Coleman, 69 A.D.3d 846 (2010), where the Second Department held that a former supervising attorney in a Surrogate's Court law department was not disqualified absent involvement "to an important, material degree" in the matters at issue.

Having concluded that Rule 1.12 does not bar the former clerk from appearing before the employing judge on new matters, the opinion answers the lawyer's fallback question (whether he could appear before other judges of the same court) by noting that question does not arise: there is no bar to appearing before the employing judge in the first place. The opinion adds two cautions in footnotes: any obligation on the judge's side is a question under the Code of Judicial Conduct, on which the committee expresses no view, and the factors for "substantial and personal involvement" are drawn from prior opinions such as Opinion 748 (2001), including whether the clerk did more than supervisory or ministerial work, helped research or write merits decisions, or had access to confidential information through contact with the parties.

In practice

The opinion holds that, under the New York rules as they stood at the time, a former law clerk may appear before the judge he clerked for, and may assist others who appear, on matters he did not work on during the clerkship. Per the opinion, Rule 1.12(b)(2) disqualifies the lawyer only in a matter in which he participated personally and substantially as a clerk, and even then the parties may consent in writing. The opinion measures "personal and substantial" by the factors in its prior opinions and in In re Coleman: more than a supervisory or ministerial role, involvement in researching or writing merits decisions, or access to confidential information. The opinion expressly does not address the judge's own obligations, which fall under the Code of Judicial Conduct.

Common questions

Q: Can a former law clerk appear before the judge who employed the clerk?

A: Yes, on matters the lawyer did not handle as a clerk. The opinion concludes Rule 1.12 bars only matters in which the lawyer participated personally and substantially while clerking.

Q: What counts as "personally and substantially" participating in a matter as a clerk?

A: The opinion points to factors from its prior opinions and In re Coleman: doing more than supervisory or ministerial work, helping research or write decisions on the merits, or having access to confidential information through contact with the parties.

Q: Can the disqualification on a matter the clerk handled be waived?

A: Yes. The opinion notes that Rule 1.12(b)(2) allows the representation if all parties to the proceeding give informed consent, confirmed in writing.

Q: Does the opinion address whether the judge must do anything?

A: No. The opinion states in a footnote that any obligation of the judge is a question under the Code of Judicial Conduct, on which the committee expresses no view.

Background and rules framework

The opinion interprets New York Rule 1.12(b)(2) (former judge, arbitrator, mediator, or law clerk; the analog of Model Rule 1.12), which disqualifies a former law clerk from a matter in which the clerk participated personally and substantially, subject to written consent of all parties. The personal-and-substantial standard is informed by the court's analysis in In re Coleman and by the committee's earlier Opinion 748 (2001).

Citations and references

Rules of Professional Conduct:

• MR 1.12 / NY Rule 1.12(b)(2) (former law clerk; personal and substantial participation; consent of all parties confirmed in writing)

Cases:

• In re Coleman, 69 A.D.3d 846 (2d Dep't 2010), former government attorney not disqualified absent involvement "to an important, material degree"

Other opinions cited:

• N.Y. State 748 (2001): factors for "personal and substantial" participation by a former government lawyer

See also

• NY State Bar Op. 1064: former judge conflict and firm screening
• NY State Bar Op. 1209: former judge and firm disqualification on a prior matter
• NY State Bar Op. 1115: public defender appearing before a colleague judge

Source

• Landing page: https://nysba.org/ethics-opinion-985/