Opinion 22-65

May 5, 2022

Digest:         Application and enforcement of the Office of Court Administration’s work schedule policies to non-judicial court personnel are primarily administrative matters, which the Committee cannot address.

Rules:          22 NYCRR 100.1; 100.3(C)(1)-(2); Opinion 18-45.

Opinion:

         The inquiring full-time judge presides in a court where full-time court personnel are expected to work seven hours during a set eight-hour day, with a one-hour break for lunch. One full-time law clerk, appointed by an administrative judge but subject to the inquirer’s supervision,¹ spends only seven hours at the courthouse per day, leaving one hour early rather than taking a one-hour midday break. Although the judge believes that, under Office of Court Administration rules and policies, “no employee is allowed to work through lunch and leave early,” the judge also believes that the practice has persisted “for years” because no one has told the employee to stop. The judge asks if they have “any ethical duty to hold an employee that [the judge] supervise[s] to follow the policies and procedures of the Office of Court Administration.”

         A judge must uphold the judiciary’s integrity, impartiality, and independence (see 22 NYCRR 100.1). A judge “shall diligently discharge the judge’s administrative responsibilities without bias or prejudice and maintain professional competence in judicial administration” (22 NYCRR 100.3[C][1]) as well as “require staff, court officials and others subject to the judge’s direction and control to observe standards of fidelity and diligence that apply to the judge” (22 NYCRR 100.3[C][2]).”

         Whether a law clerk may work seven hours without a break and then leave the workplace is an administrative question. The inquiry offers few details concerning this law clerk’s employment history, including how the law clerk came to follow this particular work schedule. That such considerations could potentially be relevant – and are likely unknown to the inquiring judge - only underscores that the issues presented here are administrative rather than ethical in nature and would be best addressed by the administrative judge. Indeed, application and enforcement of the Office of Court Administration’s work schedule policies to non-judicial court personnel are primarily administrative matters which the Committee cannot address. As we conclude that the propriety of the law clerk’s work schedule here is primarily an administrative question, we decline to recommend any course of action to the inquiring judge (see generally Opinion 18-45).

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¹ The inquiring judge does not have exclusive supervisory authority over this law clerk, as the individual is appointed by an administrative judge and is subject to supervision by all the judges of the court.