Opinion 02-73

October 24, 2002

Digest:         The clerk of the court, who also acts as the court attorney, should not be involved in handling court matters involving a litigant in the court while business dealings with the litigant’s spouse are ongoing. Upon the conclusion of the transaction, and for a period of two years thereafter there should be disclosure of the relationship, and if there is any objection, assignment of such matters to the deputy clerk.

Rules:          22 NYCRR 100.2(C), 100.3(C)(2); Opinions 97-07 (Vol. XV), 97-44 (Vol. XV).

Opinion:

         A county judge/surrogate advises that the clerk of Surrogates Court, an attorney, has engaged the spouse of the Public Administrator to act as a broker in the sale of a house. This clerk, aside from purely clerical duties, acts as court attorney for the inquiring judge, which includes acting as a hearing officer in contested proceedings in which the Public Administrator is a party, as well as working with the Public Administrator on “numerous problematic estates.” Of further relevance is the fact that the Public Administrator is the sibling of the other surrogate so that all matters involving the Public Administrator go before the inquiring judge. There is a deputy clerk available, who also is an attorney.

         Section 100.3(C)(2) of the Rules Governing Judicial Conduct provides that a judge shall require the staff and court officials subject to his or her direction and control to observe the standards of fidelity and diligence that apply to the judge. Also, section 100.2(C) provides that . . . “a judge shall not convey or permit others to convey the impression that they are in a special position to influence him or her.”

         Since the existence of the clerk’s business relationship with the Public Administrator’s spouse may create an appearance of favoritism we recommend that until the sale of the house is concluded the clerk should be insulated from all matters involving the Public Administrator. See Opinions 97-44 (Vol. XV), 97-07 (Vol. XV).

         After the sale of the house is concluded and any commission paid, there should be disclosure of the clerk’s past business relationship with the Public Administrator’s spouse, and if there is objection, the matter should be referred to the deputy clerk. In view of the benign and isolated nature of the clerk’s business dealing with the Public Administrator’s spouse, disclosure for a period of two years would be sufficient.