Opinion 96-135

January 23, 1997

Digest:         A Supreme Court justice may not allow the judge’s law clerk to serve as an arbitrator under a local trial lawyers association’s arbitration program.

Rules:          22 NYCRR 100.2(A); 100.3(C)(2); Opinion 89-33 (Vol. III)

Opinion:

         A Supreme Court justice asks if the judge’s confidential law clerk may be listed and serve as an arbitrator under a local trial lawyers’ association arbitration program. If chosen, the law clerk would be one of a panel of three compensated arbitrators. Each party to the dispute would choose one arbitrator and those two arbitrators would choose a third arbitrator. The results of the arbitrations would be binding on the parties. The matters arbitrated may include actions which were in the court system prior to submission to arbitration. Upon completion of the arbitration, the determination of the arbitrators may be submitted to court for confirmation or vacatur. The law clerk would serve as an arbitrator during non-court hours, either on annual leave days or court holidays and would secure Office of Court Administration permission to participate.

         In the opinion of the Committee, service by the law clerk as an arbitrator would result in an appearance of impropriety. It appears that the law clerk will be selected by attorneys who may regularly appear in the court in which the law clerk serves. The status of the law clerk as an arbitrator selected by the attorneys practicing in the judge’s court suffices to create a perception that could impair “public confidence in the integrity and impartiality of the judiciary.” (22 NYCRR 100.2[A]).

         It is that fact that distinguishes the instant inquiry from Opinion 89-33 (Vol. III) where the Committee found no ethical barrier to allowing a Supreme Court justice’s law clerk to serve as an uncompensated arbitrator in Small Claims Court. As noted in that opinion, “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.” That attenuation is lacking in the instant situation, and the Committee concludes that serving as an arbitrator, under the circumstances presented, does create a direct conflict. That conflict should not be permitted by the judge. (22 NYCRR 100.3(C)[2]).