Opinion 23-211
February 1, 2024
Digest: A town justice may not permit his/her attorney assistant to accept part-time employment in the District Attorney’s office in the same county.
Rules: 22 NYCRR 100.1; 100.2; 100.3(C)(2); Opinions 22-58; 21-163; 17-145; 16-142; 08-22; 07-142; 07-85; 99-159; 97-107.
Opinion:
The inquiring town justice’s court employs an attorney to assist him/her part-time, in addition to one or more court clerks. The attorney-assistant[1]has been offered a “temporary part-time position” as an attorney in the local District Attorney’s office. The assistant would not practice in the town court and would “avoid any direct contact” with the ADAs who do appear in the judge’s court. The judge asks if the positions are ethically compatible.
A judge must uphold the integrity and independence of the judiciary (see 22 NYCRR 100.1) and must always avoid even the appearance of impropriety (see 22 NYCRR 100.2). A judge must also “require staff, court officials and others subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge” (22 NYCRR 100.3[C][2]).
Town and village justices generally may allow court personnel to engage in outside employment that is compatible with their service with the court. Nevertheless, our prior opinions have consistently advised that a court clerk may not be employed by a prosecutor, public defender, or police department that regularly appears in the judge’s court (see e.g. Opinions 22-58 [matron in local Police Department]; 16-142 [assistant to municipal prosecutor]; 07-142 [secretary in Public Defender’s office]; 07-85 [secretary in District Attorney’s office]; 97-107 [clerk in Public Defender’s private law office]).
Different principles may apply if the employment is outside the court’s jurisdiction (see Opinions 17-145 [village court clerk may complete a college internship for a district attorney’s office in another county]; 99-159 [town court clerk may serve as village police officer “where the police work is infrequent and village cases do not come before the town justice”]) or is otherwise clearly insulated from matters that will come before the court (see Opinion 21-163 [town court clerk may maintain strictly clerical position as senior account clerk in the sheriff’s payroll department]).
The proposed limitations on the attorney-assistant’s employment here do not take this case outside our consistent prohibitions. Clearly, town court personnel who are attorneys may not represent clients in the town court regardless of where or with whom they practice law. The inquiring judge’s proposal that the attorney assistant would avoid “direct contact” with any ADAs who appear in the judge’s court, even if practicable, would not remove the appearance of partisanship that the ethical rules are designed to avoid.
In reaching this conclusion, we distinguish Opinion 08-22, which said a part-time judge may serve as a full-time legal secretary in the local Public Defender’s office because of “particular and unique circumstances,” including the PD’s extremely rare appearances in the local court. That opinion was to be applied with “particular caution” because of the risk of public perception that the judge would be unduly influenced in the performance of judicial duties by their obligations to the PD’s office. Here, because local ADAs appear regularly in the judge’s court, we regard the clerk’s proposed employment to pose a far more substantial ethical risk.
Accordingly, we conclude that the attorney-assistant’s proposed temporary part-time employment with the DA’s office is impermissible (see Opinions 22-58; 16-142; 07-142; 07-85).
[1] We coin and use this generic term because we are not aware of any standard nomenclature for court personnel beyond court clerks in the town and village courts; we understand such personnel may have various titles such as court assistant, law clerk, court administrator, etc.