Opinion 09-129

June 3 - 4, 2009

Digest:         A judge should not permit his/her law clerk to participate with other members of the legal community in critiquing a trial advocacy course offered by the New York Prosecutor’s Training Institute.

Rules:          22 NYCRR 100.1; 100.2; 100.2(A), (C); 100.3(C)(2); Opinion 07-04; 03-69; 96-135 (Vol. XV).

Opinion: 

         A judge asks whether his/her full-time law clerk may participate with other members of the legal community in critiquing a trial advocacy course offered by the New York Prosecutor’s Training Institute, a not-for-profit corporation created to serve as the mutual assistance and continuing legal education division of the New York State District Attorneys Association. According to the judge, the only criminal matters assigned to his/her court are post judgment motions pursuant to CPL art. 440 and other post judgement matters such as sex offender registry hearings and post-release supervision hearings. The judge’s law clerk would not receive any monetary compensation for participating in the critique but might receive CLE credit. Also, the law clerk would participate in the critique on his/her own time.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and independence of the judiciary (see 22 NYCRR 100.2[A]). A judge also must require his/her staff to observe the standards of fidelity and diligence that apply to the judge (see 22 NYCRR 100.3[C][2]).

         The Committee previously has advised that a law clerk’s position is one of "particular trust and confidence" and that a judge and his/her law clerk engage in the kind of professional interchange that might be found between long-time colleagues in a law firm (see Opinion 07-04). Therefore, a law clerk's outside activities must be evaluated in light of the possible impact those activities may have on 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 a judge (see 22 NYCRR 100.1; 100.2[A], [C]; Opinion 03-69).

         Therefore, the Committee concluded that a judge should not permit his/her law clerk to co-author articles with an attorney whose law firm frequently appears before the judge to litigate cases involving the area of law to be addressed in the proposed articles (see Opinion 03-69). The Committee was concerned that such collaboration between the judge’s law clerk and the attorney might imply that the attorney’s law firm has some advantage or influence with the judge’s law clerk and ultimately with the judge on disputed legal issues likely to come before the judge.

         Nor may a judge permit his/her law clerk to serve on a panel as an arbitrator under a local trial lawyers’ association arbitration program where lawyers who also appear in the judge’s court would select the law clerk to serve as an arbitrator in their cases (see Opinion 96-135 [Vol. XV]). In the Committee’s view, the proposed activity would result in an appearance of impropriety and create a perception that could impair “public confidence in the integrity and impartiality of the judiciary” (id. quoting 22 NYCRR 100.2[A]).

         For the same reasons, the judge in the present inquiry should not permit his/her law clerk to critique a trial advocacy course offered by the New York Prosecutor’s Training Institute. According to its website, the Institute “. . . utilizes the collective skill of New York State's criminal law experts and top prosecutors, along with nationally recognized scholars, to provide the required depth of knowledge the citizens of the Empire State demand to ensure that justice is achieved” (New York Prosecutor’s Training Institute, http://www.nypti.org [accessed June 11, 2010]). Given the nature of the relationship between a judge and his/her law clerk (see Opinion 07-04), a law clerk’s participation in a program that is offered only to prosecutors for the purpose of improving their prosecutorial skills could create an appearance of impropriety (see 22 NYCRR 100.2) and risk compromising the public’s confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]).