Opinion 07-11

April 19, 2007

Digest:         A judge may permit his/her law clerk to oppose the District Attorney in the upcoming election, either by supporting an opponent or by becoming a candidate for the office, subject to the applicable Rules Governing Judicial Conduct and Part 50 of the Rules of the Chief Judge. As long as the judge is satisfied that the law clerk can remain objective, the judge need not preclude the law clerk from working on cases in which the District Attorney appears.

Rules:           22 NYCRR 50.5; 100.5(C); Opinions 06-12; 03-111; 03-48; 01-35 (Vol. XX); Joint Opinion 00-78 and 00-80 (Vol. XIX); Opinions 99-10 (Vol. XVII); 97-103 (Vol. XVI); 97-69 (Vol. XVI); 93-36 (Vol. XI); 92-82 (Vol. IX); 92-57 (Vol. IX); 90-102 (Vol. VII); 90-85 (Vol. VI).

Opinion:

         A judge asks if his/her court attorney may actively support the District Attorney’s opponent in the upcoming election or become a candidate for that office. The judge advises that the District Attorney, who appears in the judge’s court, has expressed concern about the law clerk’s ability to remain objective while supporting the District Attorney’s opponent or while opposing the District Attorney as a candidate.

         Pursuant to the Rules Governing Judicial Conduct, staff members who are a judge’s personal appointees are prohibited from engaging in the following political activity:

(1) holding an elective office in a political organization, except as a delegate to a judicial nominating convention or a member of a county committee other than the executive committee of a county committee;

(2) contributing, directly or indirectly, money or other valuable consideration in amounts exceeding $500 in the aggregate during any calendar year to all political campaigns for political office, and other partisan political activity including, but not limited to, the purchasing of tickets to political functions, except that this $500 limitation shall not apply to an appointee’s contributions to his or her own campaign. Where an appointee is a candidate for judicial office, reference also shall be made to appropriate sections of the Election Law;

(3) personally soliciting funds in connection with a partisan political purpose, or personally selling tickets to or promoting a fund-raising activity of a political candidate, political party, or partisan political club; or

(4) political conduct prohibited by section 50.5 of the Rules of the Chief Judge (22 NYCRR 50.5).

22 NYCRR 100.5(C).

         “The basic principle is that the judge must prohibit the law clerk from engaging in those political activities specifically prohibited by the rules, and that, in the absence of special circumstances, any activity not specifically prohibited by the rules is permitted.” Opinion 90-102 (Vol. VII). The judge’s law clerk may not engage in such political activities in the court house or during the clerk’s working time, and must not give the impression that the judge is engaged in political activities. Id.

         In applying these principles, this Committee has previously determined that a judge’s law clerk may (1) 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 (Opinion 03-111); (2) become a candidate for and serve on a town council, provided that such service does not adversely affect the law clerk’s official duties and the justice’s judicial position [Opinion 01-35 (Vol. XX)]; (3) seek election to a public school board [Opinions 99-10 (Vol. XVII); 97-69 (Vol. XV)]; (4) accept a volunteer position in a political campaign provided that no political activities take place on court premises or on court time, and provided that the clerk avoids any implication that he or she is acting for the judge [Opinion 93-36 (Vol. XI)]; and (5) act as a political party county committee member, and solicit signatures on nominating petitions for political candidates. Opinion 90-85 (Vol. VI).

         A judge’s law clerk who is the judge’s personal appointee, however, cannot act as treasurer for a political candidate’s campaign (Opinion 03-48), and may not donate office space to a political party which, if rented on the open market, could have a value of over $500 per year. Opinion 97-103 (Vol. XV).

         With respect to the District Attorney’s concern about the law clerk’s continuing objectivity while engaged in supporting the District Attorney’s opponent or while opposing the District Attorney as a candidate, this Committee previously has advised that a judge need not recuse himself/herself in proceedings involving his/her political opponent as long as the judge can remain impartial. Opinion 06-12; Joint Opinion 00-78 and 00-80 (Vol. XIX); Opinions 92-82 (Vol. IX); 92-57 (Vol. IX). Similarly, the judge should determine the law clerk’s ability to remain objective when working on cases involving the District Attorney. As long as the judge is satisfied that the law clerk can remain objective, the judge need not preclude the law clerk from working on cases involving the District Attorney.

         The inquiring judge, therefore, may permit his/her law clerk to engage in political activities, subject to the applicable Rules Governing Judicial Conduct and Part 50 of the Rules of the Chief Judge governing the political activities of non-judicial employees. The law clerk should contact the Unified Court System’s Office of Court Administration, the agency with the ultimate authority to interpret Part 50, for guidance on how Part 50 applies to his/her particular circumstances. (Contact: ETHICS HELPLINE: 1-888-28ETHIC.)

Note on terminology: The term "town council" as used in prior Opinions is synonymous with "town board."