Opinion 97-73

June 13, 1997

NOTE: 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:         A part-time law clerk for a City Court may practice law in the County Court of the county in which the City Court is located but may not handle any case which was commenced in or otherwise involved the City Court.

Rules:          22 NYCRR 25.40(d),(e).

Opinion:

         A City Court Judge inquires as to the limitations on the practice of law by an attorney who the judge anticipates will be appointed a part-time law clerk in the City Court. Specifically, the judge asks if the law clerk may practice criminal law in the County Court in the county in which the City Court is located, and, if so, whether the law clerk is allowed to handle County Court cases which were commenced in the City Court or which involved search warrants issued by the City Court.

         It is the view of the Committee that the part-time law clerk for the City Court may practice law in the County Court of the county in which the City Court is located. However, the practice would not be unrestricted. Limitations on the law practice of part-time law clerks are set forth in sections 25.40(d) and (e) of the Rules of the Chief Judge, which state (22 NYCRR 25.40[d][e]):

(d) 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 or her duties.

(e) No partner or associate of a part-time law secretary or law clerk shall practice law before the justice or judge by whom such law secretary or law clerk is employed.

    It is the opinion of the Committee that adherence to these provisions requires that the part-time law clerk not be involved as a private attorney in any matter which in any way involved the City Court. By way of illustration, the law clerk may not represent a defendant in County Court if a complaint or information had been issued under the aegis of the City Court, or if a defendant had been arraigned or had a preliminary hearing in the City Court, or was the subject of an arrest warrant or search warrant issued by the City Court. Such strictures apply even if, at the time, the defendant had been represented in the City Court by a different attorney.