May judicial staff attorneys represent private or pro bono clients outside their court employment?
Apply this to your situation
This page answers the general question as of 2008. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.
Plain-English summary
Two judicial staff attorneys wished to take volunteer legal cases outside court work, without state time or resources.
The Committee found that the former Judicial Conduct Code did not itself prohibit a judge from allowing outside practice. The judge still had to supervise staff conduct for Code compliance, and personnel policies and lawyers’ professional rules also applied. The Committee declined to set personnel policy.
Currency note
This opinion was issued in 2008. Verify the current Nebraska Revised Code of Judicial Conduct and later opinions before relying on its conclusion.
Common questions
Q: Did the Judicial Conduct Code itself forbid the outside work?
A: No.
Q: Could the Committee establish court employment rules?
A: No; it said personnel policy lay outside its advisory authority.
Background and rules framework
The opinion applied former Canons 2, 3, and 4 governing appearances of impropriety and supervision of court staff.
Citations and references
Former Nebraska Code of Judicial Conduct: Canon 2; Canons 3B(4), 3B(5), 3B(7), 3B(9), 3C(2), and 4C(3)(b)(iv).
See also
Source
- Landing page: Nebraska Judicial Ethics Committee opinions
- Original PDF: Opinion 08-2
Original opinion text
Best-effort text extraction from the official PDF. The linked PDF is authoritative.
Nebraska Judicial Ethics Opinion 08-2
Question Presented --
Can a judge permit judicial staff attorneys to provide legal representation for individual clients apart from their regular employment with the State?
Conclusion
The Nebraska Code of Judicial Conduct does not prohibit judicial staff attorneys from providing legal representation for individual clients outside their regular employment by a court. The Judicial Ethics Committee has no authority to establish guidelines for personnel policies and procedures.
Statement of Facts
A judge requests an advisory opinion. Two staff attorneys from the judge’s court wish to take on cases from the Nebraska Volunteer Lawyer Project (VLP). The attorneys have been able to learn the names of potential clients and have been able to ascertain that the potential clients have no current litigation in the judge’s court. It is their intention to use no state resources or time for any activities relating to the pro bono representation.
The court asks whether it is permissible for judicial staff attorneys to provide legal representation for individual clients apart from their regular employment with the State? If so, what limitation might be placed on the representation (in addition to any ethical obligation from the Nebraska Code of Judicial Conduct)? Further, what guidance can be provided with respect to avoiding the appearance of impropriety in any representation?
Applicable Code Sections
Neb. Code of Jud. Cond., Canon 3C(2)
Neb. Code of Jud. Cond., Canon 3B(4)
Neb. Code of Jud. Cond., Canon 3B(5)
Neb. Code of Jud. Cond., Canon 3B(7)
Neb. Code of Jud. Cond., Canon 3B(9)
Neb. Code of Jud. Cond., Canon 4C(3)(b)(iv)
Neb. Code of Jud. Cond., Canon 2
Discussion
The Judicial Ethics Committee has authority to express its opinion on proper judicial conduct with respect to the provisions of the code. It does not have authority to express its opinion on personnel policies and procedures for any employee of the respective courts including staff attorneys, career law clerks, law clerks, or any other employee who may have a license to practice law.
The Code does not prohibit a judge from allowing court staff under the judge’s supervision to practice law.
The Code requires a judge to control and supervise court staff under the judge’s direction to act in a manner consistent with the judge’s obligation under the Code. For example, under Canon 3C(2), “A judge shall 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 and to refrain from manifesting bias or prejudice in the performance of their official duties.” A judge must also ensure staff members are courteous (Canon 3B(4)), do no manifest bias or prejudice (Canon 3B(5)), do not allow ex parte communications (Canon 3B(7)), do not make improper public comment (Canon 3B(9)), and do not solicit funds on the judge’s behalf even for charitable purposes (Canon 4C(3)(b)(iv)).
Nebraska Judicial Ethics Opinion
08-2
Available on-line at www.supremecourt.ne.gov Page 1 of 2
Courts have personnel policies and procedures that address outside employment by employees. If a judge determines that court staff under the judge’s supervision are allowed outside employment to practice law, then the judge must in addition see that the employee is supervised within the above code guidelines. Staff attorneys, law clerks, and other employees having a license to practice law are held to a higher standard than other employees. They must comply with employment policies and procedures. Because of their education, experience, and license to practice law, they are expected to understand the judge’s duties and responsibility under the Nebraska Code of Judicial Conduct. They must also comply with the Rules of Professional Conduct.
Canon 2 provides, “A judge shall avoid impropriety and the appearance of impropriety in all of the Judge’s activities.” Under its comments, the Code provides, “The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity and impartiality is impaired.” This suggests that if the judge permits outside employment by staff, then he must satisfy this canon. Without attempting to limit the questions the judge must consider, we point out the following:
(1) The outside employment is not with an entity that regularly appears in court or conducts business with the court system and it does not require the court employee to have frequent contact with attorneys who regularly appear in the court system.
(2) The work is capable of being fulfilled outside normal working hours, without court resources, and is not incompatible with the performance of the court employee’s duties and responsibilities.
(3) It does not require disclosure of confidential information acquired in the course of official duties.
(4) Where a conflict of interest exists or may reasonably appear to exist or where the outside employment may reflect adversely on the integrity of the court, the employee must inform the judge prior to accepting the outside employment.
These represent only a few of the considerations a judge must consider in making this decision.
The Nebraska Code of Judicial Conduct cannot control the employee and the Judicial Ethics Committee has no authority to establish personnel policies and procedures.
Disclaimer
This opinion is advisory only and is based on the specific facts and questions submitted by the person or organization requesting the opinion pursuant to appendix A of the Nebraska Code of Judicial Conduct. Questions concerning ethical matters for judges should be directed to the Judicial Ethics Committee.
APPROVED AND ADOPTED
BY THE COMMITTEE ON JUNE 6, 2008
Judge John F. Steinheider
Judge Carlton E. Clark
Judge John A. Colborn
Judge Robert B. Ensz
Judge Lawrence D. Gendler
Judge William B. Cassel
Judge Sandra L. Dougherty
Nebraska Judicial Ethics Opinion
08-2
Available on-line at www.supremecourt.ne.gov Page 2 of 2
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