January 16, 2020
This responds to your inquiry (19-132) asking if you may permit your law clerk, a personal appointee, to 1) display a political candidate’s yard sign on his/her solely or jointly owned property, 2) wear clothing featuring political messages away from the courthouse during non-working hours, 3) distribute political literature door-to-door or at a booth at a community function, away from the court house during non-working hours, and 4) “like” or “follow” pages of political campaigns and political organizations on social media.
We previously advised that a judge may not permit his/her personal appointees to engage in “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” (see Opinions 12-71 and 07-11). The specific political activities described above are not prohibited by 22 NYCRR 100.5[C]-, therefore, the judge may permit the law clerk to participate in these activities provided the activities occur away from the courthouse during non-working hours. We have also advised that a judge must instruct his/her law clerk not to engage in political activity that creates the impression that the judge is engaged in political activity (see Opinions 16-64 and 12-71).
Enclosed, for your convenience, are Opinions 16-64; 12-71; and 07-11 for your review, which address this issue.
Very truly yours,
George D. Marlow, Assoc Justice
Appellate Div., First Dept. (Ret)
Hon. Margaret T. Walsh
Supreme Court Justice