Opinion 11-62

June 16, 2011

Digest:         Under the circumstances presented, a part-time judge may permit a newly hired court clerk to continue to work as an attorney in the judge’s private law office, performing organizational tasks, as long as such outside employment is legally permitted.

Rules:          22 NYCRR 100.2; 100.2(A); 100.6(B)(2).

Opinion:

         A part-time judge of a local justice court asks whether he/she may continue to employ an attorney in the judge’s private law office who has now been hired as the court clerk for the judge’s court. The attorney’s job responsibilities in the judge’s private law office include filing papers, scanning documents, managing the filing system, and other such organizational tasks. The judge states that, if permitted to hold both positions concurrently, the employee would only work for the judge’s private law office outside of his/her scheduled working hours at the courthouse. The judge also states that no other attorneys are associated with the judge’s law practice and that, due to ethical restrictions on the judge’s legal practice, none of the documents in his/her law office do or will relate to matters that have or will come before the judge’s court.

         A judge must always avoid even the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a part-time judge is prohibited from practicing law in the court where the judge serves, or in any other court in the same county before a judge who is permitted to practice law, and shall not act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto (see 22 NYCRR 100.6[B][2]).

         Under the circumstances presented, it is the Committee’s view that it is ethically permissible for the inquiring judge to employ the attorney in the judge’s private law practice to perform organizational tasks while the attorney also is the court clerk for the judge’s court, as long as the proposed outside employment is permitted under applicable local laws and rules (cf. 22 NYCRR 100.2[A] [a judge shall respect and comply with the law]).

         Nevertheless, the judge must strive to avoid any possible appearance of impropriety that might arise if the employee’s public employment with the justice court appeared to be conditioned on his/her outside employment with the judge’s private law office (see generally 22 NYCRR 100.2).