Opinion 04-136

December 2, 2004

Digest:         (1) A judge should inform his or her law clerk of the obligation to seek approval under section 50.3(a) of the Rules of the Chief Judge in order to accept outside employment on behalf of a government agency or entity in each instance that such employment is offered (2) The question of whether such employment constitutes the practice of law and is therefore prohibited should be made by the administrative authorities in connection with any application for approval that is submitted under section 50.3(a).

Rules:          22 NYCRR 50.1(III); 50.1(III)(A); 50.3(a); 50.6; 100.3(C);100.3(C)(2).

Opinion:

         A law clerk to the inquiring judge had previously been asked to serve as an impartial hearing officer in student employee disciplinary matters. Permission was sought from the Administrative Judge for the judicial district, and was granted on the ground that there was no requirement that such officer be an attorney and therefore the employment did not constitute the practice of law.

         The judge states that the law clerk has the opportunity for further assignments of this nature; and thus, notwithstanding the prior approval, the judge asks the following question:

My specific inquiry to your committee is whether I am required, as an ethical matter, to prohibit my law clerk’s continued participation as a hearing officer in student disciplinary proceedings instituted pursuant to Education Law §3214 and employee disciplinary proceedings pursuant to Civil Service Law §75 on the grounds that they constitute the impermissible practice of law in violation of 22 NYCRR §50.6?

         We note initially that a judge must require staff, court officials and others subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge. 22 NYCRR 100.3(C)(2). Therefore, a judge’s administrative responsibilities include the adequate supervision of staff, including making sure that staff adequately comply with the rules and obligations governing their employment or conduct. 22 NYCRR 100.3(C).

         In this regard, the Rules of the Chief Judge Governing Conduct of Non-judicial Court Employees allow court employees to engage in outside employment or other activities in a manner that does not conflict with their employment duties in the Unified Court System. 22 NYCRR 50.1(III) and 50.1(III)(A). However, under the same Rules, employment by another governmental agency or entity requires the prior written consent of the employee’s appointing authority, which “consent shall be subject to the approval by the Chief Administrator of the Courts.” Furthermore, “[s]uch written consent shall be required, in each case for each such additional appointment or employment accepted or undertaken by such employee.” 22 NYCRR 50.3(a)

         Given that there is a mandated approval procedure, and there might be differing requirements and duties for different employment situations, the Committee is not in a position to issue a blanket answer to the question whether such service constitutes the practice of law which would therefore be prohibited under section 50.6 of the Rules. Instead, we are of the opinion that the judge meets his or her ethical obligation of supervision by requiring the law clerk to invoke section 50.3(a) for each appointment that the law clerk wishes to accept or undertake; and any approval given by the judge himself or herself could be made contingent upon the further and definitive assessment to be made by the appropriate administrator.

         Presumably, the particular details of the individual assignment will be spelled out and the appropriate administrative authorities will be in a position to determine whether the tasks involved constitute the practice of law or suffer from some other infirmity that precludes consent. Informing the law clerk, preferably by written memorandum, of the law clerk’s continuing obligation to adhere to the procedure required for engaging in any employment that requires approval, we believe, is a sufficient safeguard under the circumstances presented.