Opinion 12-46

March 8, 2012

Digest:         A judge may not permit his/her law clerk to serve on the board of directors of a social services agency that appears frequently in the judge’s current court and is also involved in the majority of cases in a court over which the judge expects to preside in the near future.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(C)(2); 100.4(C)(3)(a)(i); 100.5(C); Opinions 09-127; 09-111(B); 09-77; 08-103; 00-108 (Vol. XIX); 98-143 (Vol. XVII); 97-139 (Vol. XVI); 97-17 (Vol. XV); 96-96 (Vol. XIV).

Opinion:

         A full-time judge asks whether his/her law clerk may serve on the board of directors of a social services agency which “provide[s] alcohol and substance abuse evaluation, treatment and counseling to residents of” the county in which the judge presides and “appears frequently in [c]ourt to provide assistance to the [c]ourt in potential treatment plans for those who appear in need.” The judge notes that the agency is also involved in “the majority of cases” in the drug court over which the judge expects to preside in the near future.

         A judge must always avoid even the appearance of impropriety (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]). A judge may not serve as an officer, director, trustee or non-legal advisor of an organization if it is likely that the organization will be engaged in proceedings that ordinarily would come before the judge (see 22 NYCRR 100.4[C][3][a][i]). 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]).

         Under the facts presented, it is clear the judge could not serve on the board of directors of this particular social services organization (see 22 NYCRR 100.4[C][3][a][i]; see also e.g. Opinions 09-77 [judge may not serve as director of not-for-profit agency that provides services to persons who are or may have been referred to that agency by the court in which the judge presides]; 08-103 [judge may not serve on board of a not-for-profit organization that provides educational information about alcohol and drug abuse and gambling, where “as a condition of a plea or sentencing,” judge requires certain defendants to take a particular class offered by the organization]; 96-96 [Vol. XIV] [judge who “issues orders of protection and handles arraignments and misdemeanor trials which concern allegations and charges of domestic violence” should not serve on an advisory committee to an agency that provides services to victims of domestic violence]).

         The question presented here is whether similar principles should apply to the judge’s personal law clerk. As the Committee stated in Opinion 09-127:

[B]ecause the position of law clerk is one of “particular trust and confidence,” a law clerk’s activities must be evaluated in light of the possible impact they may have on a judge’s obligation to maintain public confidence in the independence and impartiality of the judiciary (see Opinion 09-111[B]). Nevertheless, the limitations on the extrajudicial conduct of a judge do not automatically apply to the judge’s law clerk (see Opinions 00-108 [Vol. XIX]; 97-17 [Vol. XV]; cf. 22 NYCRR 100.5[C] [specifically imposing certain restrictions on personal appointees of a judge]) or to court attorneys who are not personal appointees of a judge.

         The Committee has previously advised that a judge may permit his/her law clerk to serve on the board of directors of not-for-profit organizations that represent indigent defendants in criminal cases “in venues other than the one where the judge sits” (Opinion 97-139 [Vol. XVI]) and on the board of directors of a county Legal Aid Society “[w]here it is unlikely that the judge will be called upon to appoint Legal Aid Society lawyers, or that Legal Aid Society lawyers will be appearing before the judge” (Opinion 98-143 [Vol. XVII]). However, if the particular board or agency were involved in a case before the inquiring judge, the Committee has advised that the judge must disclose the clerk’s membership on the board; insulate the law clerk from the case; and disclose the insulation (see e.g. Opinion 98-143 [Vol. XVII]).

         Here, the agency is not one that provides services outside the jurisdiction of the judge’s court; to the contrary, it “appears frequently” in the judge’s court, and it also appears in “the majority of cases” in the drug court over which the judge expects to preside soon. Under these circumstances, the Committee does not consider insulation of the clerk to be a viable alternative because it is simply not possible to insulate the clerk from every drug court case without hindering the judge in the performance of his/her judicial duties. Accordingly, the inquiring judge may not permit his/her law clerk to serve on the board of the agency.