Opinion 90-102

January 24, 1991

NOTE: Former sections 100.3(b)(5) and 100.7 have been superseded by 22 NYCRR 100.5(C) and 100.5 respectively.  The Chief Judge’s rules concerning political activities of nonjudicial court employees now appear at 22 NYCRR 50.5.  For guidance on Part 50 (formerly Part 25), court personnel may consult the Office of Court Administration’s Nonjudicial Ethics Helpline (888-283-8442).

Digest:         A full-time judge generally may permit the judge’s law clerk to engage in political activities that are not specifically prohibited, provided that no political activities are conducted in the court house or during the clerk’s working time and that the clerk’s activities do not give the impression that the judge is engaged in political activities.

Rules:          22 NYCRR §100.3(b)IS); 22 NYCRR 100.7; 22 NYCRR 25.39

Opinion:

         A full-time judge inquires about permissible political activities by the judge’s law clerk.

         Because the question is general in nature, the Committee can respond only generally. The two rules that relate most directly to the question are (1) section 100.3(b)(5) of the Chief Administrator of the Courts governing the political activities of members of a judge’s staff who are the judge’s personal appointees, and (2) section 25.39 of the Career Service Rules of the Chief Judge, governing political activities by all nonjudicial personnel.

         The basic principle is that the judge must prohibit the law clerk from engaging in those political activities specifically prohibited by the rules, and that, in the absence of special circumstances, any activity not specifically prohibited by the rules is permitted. The prohibited activities are listed in the aforementioned rules, and the Committee will address any question concerning the scope of any particular prohibition, upon receipt of an inquiry specifically addressed to such prohibition.

         However, there is one significant addendum to the general principle. In addition to consideration of the aforementioned rules, in view of section 100.7 of the Judicial Conduct Rules (22 NYCRR 100.7), governing the political activities of judges, the judge should advise the law clerk to refrain from any political activities likely to implicate the judge in politics, or likely to give the impression that the judge is engaging in prohibited political activities through the law clerk, or that the law clerk’s political activities are undertaken on behalf of, or as an agent of, the judge. The law clerk should be instructed to make every reasonable effort to make it clear that the law clerk’s political activities have nothing to do with the judge who appointed the law clerk, and whom the law clerk assists. To that end, for example, the law clerk should be prohibited from conducting any political activity in the courthouse or in chambers or during the law clerk’s normal working hours.