Opinion 89-33

April 4, 1989

NOTE: The Chief Judge’s rules concerning dual employment of nonjudicial court employees now appear at 22 NYCRR 50.3.  For guidance on Part 50 (formerly Part 25), court personnel may consult the Office of Court Administration’s Nonjudicial Ethics Helpline (888-283-8442).

Topic:          May a Supreme Court justice permit the justice’s law clerk to serve as an uncompensated arbitrator in Small claims Court on a voluntary basis?

Digest:         It is not inappropriate for a Supreme Court Justice to permit his or her law clerk to serve as a volunteer arbitrator in Small Claims Court.

Rule:            Rules of the Chief Judge, §25.37 (22 NYCRR 25.37)

Opinion:

         A Supreme Court Justice asks, “Does any conflict of interest arise by a law clerk to a Supreme Court Justice volunteering his services, on an uncompensated basis, as an arbitrator in Small Claims Court?”

         A law clerk's duties in Supreme Court normally are sufficiently attenuated from proceedings in Small Claims Court to negate any direct conflict between the two positions (see Opinion #88-67). The justice should instruct his or her law clerk that, in the event that a matter originating in one court was transferred to the other, the law clerk should take appropriate steps to avoid any conflict or appearance of impropriety, i.e. referring the matter to a different Small Claims arbitrator or not working on a matter as law clerk over which he had presided in Small Claims Court.

         It is the opinion of this Committee that there is no legal or ethical conflict or incompatibility between the two positions, nor is there any statutory or other prohibition against a law clerk serving as an arbitrator in Small Claims Court, provided that there is no violation of §25.37 of the Rules of the Chief Judge (Opinion of State Comptroller 67-609). Section 25.37 provides:

(a) No employee regularly employed in a position in the classified service in the unified court system shall, while continuing to hold such position, accept appointment or employment in any other position or title, or in any capacity whatsoever, on a full-time or part-time basis, either in the classified or unclassified service, in another department or agency of the State or a political subdivision, or in the Legislature or the Judiciary, for which employment compensation or salary is payable, without the previous consent in writing of his or her appointing authority, except that such consent shall be subject to approval by the Chief Administrator of the Courts for employees of courts other than the appellate courts.

         Since the law clerk would not be receiving compensation for his services, this section is inapplicable, and there would appear to be no requirement that he obtain written consent from the Chief Administrator of the Courts prior to his appointment as a Small Claims arbitrator.