Opinion 94-19

March 10, 1994

NOTE: Former sections 100.3(b)(2) and 100.5(c)(1) have been superseded by 22 NYCRR 100.3(C)(2) and 100.4(D)(3) respectively.  The Chief Judge’s rules limiting outside practice of law by part-time nonjudicial court employees now appear at 22 NYCRR 50.6(d)-(e). 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:         (1) A part-time law clerk may serve as a school board member, and as a conservator, trustee and guardian for individuals in as much as such activities do not constitute the practice of law and insofar as they do not interfere with his or her duties as a part-time law clerk. (2) A full-time judge may not teach dancing classes at a private performing arts studio.

Rules:          22 NYCRR 100.5(c)(1), 22 NYCRR 100.3(b)(2); Rules of the Chief Judge 25.40(d)

Opinion:

         A full-time judge has submitted the following inquiries: (1) may the judge's part-time law clerk serve as a member of a school board of a public school district and as a conservator, trustee and guardian for various individuals?; (2) may the judge, with or without compensation, continue to teach dance at a private performing arts studio?

         Rule 100.3 (b)(2) of the Rules of the Chief Administrator of the Courts states that a “judge shall require his or her staff and court officials subject to his or her direction and control to observe the standards of fidelity and diligence that apply to the judge”. Rule 25.40 (d) of the Rules of the Chief Judge provides that an “employee of the Unified Court System who is employed on a part-time basis shall not participate directly or indirectly as a lawyer in any contested action or proceeding in the court in which he or she serves, or in any other practice of law which is incompatible with or which would reflect adversely upon his or her position or the performance of his duties”. Since service as a school board member, conservator, trustee or guardian does not constitute the practice of law, such activities by the judge's clerk would not be proscribed and, so long as such activities do not interfere with his or her duties as a part-time clerk, the judge would have no cause to restrict the clerk from performing such duties.

         Turning to the second inquiry, teaching at a private school, except as authorized by Rule 100.4(a) (“a judge may speak, write, lecture, teach and participate in other activities concerning the law, the legal system, and the administration of justice”) is proscribed by Rule 100.5(c)(2) which states:

No full-time judge shall be a managing or active participant in any form of business enterprise organized for profit, nor shall he or she serve as an officer, director, trustee, partner, advisory board member or employee of any corporation, company, partnership or other association organized for profit ... (Emphasis added).

         In view of the underlined language, a full-time judge should not participate, whether as a paid employee or volunteer, in a business enterprise which is organized for profit.