Opinion 03-69

June 12, 2003

Digest:            A judge should not consent to the judge’s law clerk co-authoring articles with an attorney whose law firm litigates frequently before the judge in the area of the law covered by the proposed articles.

Rules:             22 NYCRR 100.1; 100.2(A),(C).

Opinion:

            A judge’s law clerk has on occasion submitted articles for publication in the New York Law Journal and a local bar journal. The law clerk now wishes to begin submitting articles related to the No-Fault Law, in collaboration with an associate of a law firm that practices in this area of the law. The judge advises that the law firm litigates regularly before this judge and others in the court as a plaintiff’s attorney in No-Fault matters. The judge asks the Committee’s opinion about any negative perception that such a co-authorship relationship might create.

            A law clerk may, as a general rule, speak, write, and lecture on the law. But, given the relationship between a law clerk and judge, such activity must be regarded in light of the possible impact upon the judicial obligation to maintain public confidence in the independence and impartiality of the judiciary, and to avoid allowing others to convey the impression that they are in a special position to influence the judge. 22 NYCRR 100.1;100.2(A), (C). Here, the proposed articles will likely involve commentary on a variety of No-Fault legal issues, some of which may be subject to continuing legal development and dispute - i.e., areas which the judge with the aid of the law clerk will be called upon to deal with.

            In our view, the jointly published comments and views of the judge’s clerk and the lawyer whose firm litigates in an area of the law which comes before the judge with some frequency, might convey to the public a perception that this lawyer’s firm has some advantage or influence with the judge’s law clerk and ultimately with the judge on disputed legal issues that are likely to come before the judge. To avoid such a perception, which would also reflect upon the judge’s independence and impartiality, we advise that the inquiring judge should not consent to the law clerk’s participation as a co-author.