Opinion 03-111

August 13, 2004

Digest:         (1) A judge’s law clerk who is the judge’s personal appointee may circulate petitions for persons running for judicial and non-judicial office, and may review and draft such petitions, but not in the capacity of counsel. (2) The law clerk should not do legal research or draft legal memoranda in election matters that are before the Broad of Elections or are pending in the courts unless prior approval is obtained from the Chief Administrative Judge.

Rule:            22 NYCRR 50.5; 50.6; 100.5(C).

Opinion:

         The inquiring judge seeks the Committee’s advice concerning permissible political activity of the judge’s Principal Law Clerk, a personal appointee of the judge. At issue is section 100.5(C) of the Rules Governing Judicial Conduct which requires a judge to prohibit his/her personal appointee from engaging in certain political activity, as well as sections 50.5 and 50.6 of the Rules of the Chief Judge which deal with political activities of court employees and the practice of law, respectively.

         The Committee is of the opinion that the following activities cited in the judge’s letter are not prohibited: (1) carrying nominating or designating petitions for candidates seeking election to judicial or non-judicial office; (2) engaging in such activity while on annual leave; (3) privately reviewing designating petitions under the Election Law as to form, content and legal sufficiency, and drafting such petitions, but not as counsel.

         However, engaging in legal research concerning proceedings pending before the Board of Elections, or the courts, or drafting legal memoranda with respect to such matters, raise the question of whether by participating in what appear to be matters involving litigation, the law clerk would be violating section 50.6 of the Rules of the Chief Judge dealing with the practice of law by employees of the Unified Court System. In this regard, we recommend that the law clerk seek the approval of the Chief Administrative Judge.