Opinion 20-141

September 10, 2020

Digest:     Where a full-time judge’s personally appointed law clerk has neither a quasi-judicial title nor functions, the judge may permit the law clerk to participate in peaceful “Black Lives Matter” protests away from the courthouse during non-working hours, but must instruct him/her not to comment publicly on a pending or impending case by carrying signs calling for the arrest or prosecution of certain police officers in another state.

Rules:      22 NYCRR 50.5; 100.0(V); 100.2; 100.2(A); 100.3(B)(8); 100.5(C)(1)-(4); Opinions 13-133; 12-71.

Opinion:

         The inquiring administrative judge asks if his/her personally appointed law clerk¹ may participate in peaceful “Black Lives Matter” protests and join other protestors in calls to (a) defund police departments, (b) arrest the police officers involved in the Breonna Taylor shooting, and (c) eliminate qualified immunity for law enforcement personnel. The judge notes it is possible some protestors or counter-protestors may disrupt an otherwise peaceful protest with vandalism or violence.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not “make any public comment about a pending or impending proceeding in any court within the United States or its territories” (22 NYCRR 100.3[B][8]) and must “require similar abstention on the part of court personnel subject to the judge’s direction and control” (id.). A judge also must prohibit members of the judge’s staff who are the judge’s personal appointees from engaging in specified political activities (see 22 NYCRR 100.5[C][1]-[4] [setting forth limitations on holding elective office in political organizations and on making or soliciting political contributions, and cross-referencing certain additional prohibitions in Part 50²]).

         While a judge “must prohibit [his/her] law clerk from engaging in those political activities specifically prohibited by the rules” (Opinion 12-71), we have also advised that, “in the absence of special circumstances, any activity not specifically prohibited by the rules is permitted” (id. [citations omitted]). Here, too, none of the specific prohibitions of Section 100.5(C) apply to the law clerk’s proposed political activities. Accordingly, this judge may permit his/her law clerk to attend and participate in peaceful “Black Lives Matter” protests and join other protestors in calls to defund police departments or eliminate qualified immunity for law enforcement personnel, subject to applicable provisions of Part 100 and Part 50. The judge must instruct his/her law clerk not to create the impression that the judge is engaged in political activities (see Opinion 12-71) and should advise the law clerk that political activities are not permitted in the courthouse or during the law clerk’s working hours (see id.).

         With respect to joining in public calls to arrest the police officers involved in the Breonna Taylor shooting, we note the judge must require his/her law clerk to abstain from public comment on a “pending or impending proceeding” within the United States (22 NYCRR 100.3[B][8]). An “impending” proceeding is one that is “reasonably foreseeable” (22 NYCRR 100.0[V]). Accordingly, we believe the judge must instruct his/her law clerk not to carry signs demanding the arrest or prosecution of those police officers.

         The judge need not prohibit his/her law clerk from attending a planned peaceful protest merely because it could be disrupted by vandalism or violence. However, the law clerk should not remain with any protestors who are engaging in vandalism or violence.

         Finally, we note the law clerk may 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: 1-88828ETHIC.)

_____________________________

¹ While some law clerks may also hold a quasi-judicial title or function, this law clerk does not. Those who do are bound by the same restrictions as a judge with respect to political activity (see e.g. Opinion 13-133).

² Section 50.5 addresses (a) recommendations based on political affiliations; (b) inquiry concerning political affiliations; (c) political assessment; (d) prohibition against promise of influence; and (e) holding elective office in political organizations (see 22 NYCRR 50.5).