Can an attorney who also serves as a county clerk maintain a private law practice?

Plain-English summary

Attorneys who also served as county clerks asked whether R. 1:15-2 or other ethical standards barred them from a private office practice limited to matters not involving court appearances or filings. The Committee noted that R. 1:15-2 bars a clerk or deputy clerk of any court from "practice in any court," and that county clerks are deputy clerks of the Superior Court under R. 1:34-2. The rule is silent on office practice, and the Committee declined to extend it by implication, contrasting R. 1:15-1, which expressly bars judges from practicing law and surrogates from practicing trust or estate law "in or out of court."

The Committee found no ethical problem per se with a county-clerk attorney maintaining a private office practice, but identified concerns when the attorney deals with their own public office on behalf of private clients. Because the clerk's record-keeping functions are largely ministerial, not all such dealings are improper; but where the attorney's status as county clerk could reasonably appear to give clients an advantage or preference over others similarly situated, the attorney should refrain.

Concretely, the Committee said a county-clerk attorney should not handle matters involving filings with their own office to perfect a client's rights against others (for example, recording a deed or mortgage to gain priority over later claimants), should not run a practice featuring frequent applications to their own office (such as passport applications), and should avoid any other dealings with their own office that could engender an appearance of impropriety, erring on the side of propriety. Subject to those restrictions, the Committee determined the office practice is not improper.

Currency note

This opinion was issued in 1991, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and it construes Court Rules that may have been amended since. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Does serving as a county clerk bar a lawyer from all private practice?

A: No. Per the opinion, R. 1:15-2 bars only "practice in any court" (county clerks are deputy clerks of the Superior Court); it does not reach office practice, and the Committee declined to extend it by implication.

Q: What office work must a county-clerk attorney avoid?

A: Matters that involve filing instruments with the clerk's own office to perfect a client's rights against others (for example, recording a deed or mortgage to gain priority), and practices featuring frequent applications to the clerk's own office (such as passport applications), because of the apparent advantage to those clients.

Q: What is the governing standard?

A: Where the attorney's status as county clerk could reasonably appear to give clients an advantage or preference over others similarly situated, the attorney should refrain; the Committee said to err on the side of propriety in case-by-case calls.

Background and rules framework

The opinion construes R. 1:15-2 (a clerk or deputy clerk barred from practice in court) and R. 1:34-2 (county clerks as deputy clerks of the Superior Court), read against R. 1:15-1 (the express bars on judges and surrogates), and applies the appearance-of-impropriety standard then governing New Jersey lawyers. It relies on earlier Opinions 354 and 106.

Citations and references

Court Rules:

• R. 1:15-2 (clerk barred from practice in court)
• R. 1:34-2 (county clerks as deputy clerks of the Superior Court)
• R. 1:15-1 (bars on judges and surrogates practicing law)

Other opinions cited:

• NJ ACPE Op. 354 (99 N.J.L.J. 977)
• NJ ACPE Op. 106 (90 N.J.L.J. 497)

See also

• NJ ACPE Op. 656: Councilman in the Lawyer's Firm and Agency Counsel
• NJ ACPE Op. 662: Municipal Attorney Serving as Municipal Prosecutor

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp649-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

127 N.J.L.J. 886, April 4, 1991

OPINION 649

Limitations on Private Practice of Law by Attorneys Serving as County Clerks

Inquirers, attorneys who are also county clerks, have asked whether they are precluded by R. 1:15-2 or otherwise from maintaining a private office practice limited to matters which do not involve appearances in or the filing of documents with any court.

Under R. 1:15-2, an attorney who is a clerk or deputy clerk of any court is barred from "practice in any court." This prohibition applies to county clerks by virtue of their designation as deputy clerks of the Superior Court. R. 1:34-2.

The rule is silent on the subject of office practice, and the Committee does not believe that it can be extended by implication beyond its facial import. Nothing has been found in the history of the rule to support an interpretation which totally prohibits the practice of law by county clerks, and it is probable that so basic a restriction would have been stated expressly had that been the drafters' intention. Compare R. 1:15-1(a), providing that full time judges "shall not practice law" and (c), stipulating that surrogates and deputy surrogates shall not practice trust or estate law "in or out of court." Thus we conclude that any restrictions on office practice by county clerks are to be found not in R. 1:15-2, but in the application of familiar ethical standards governing the professional conduct of all attorneys.

In this aspect, we find no ethical problems per se in the maintenance of a private office practice by an attorney who is also a county clerk. Concerns arise, however, when such attorney has dealings with his or her own public office on behalf of private clients. Because the record-keeping functions of the county clerk's office are ubiquitous and largely ministerial, not all such dealings need be regarded as improper. But when an attorney's status as county clerk could reasonably appear to give his or her clients an advantage or preference over others similarly situated, the attorney should refrain from those areas of practice.

In particular, a county clerk as private attorney should not handle matters which involve the filing of instruments with his or her own public office to perfect the rights of a client against others, as where the first to record a deed or mortgage thereby gains priority over later claimants. Disputes over priority could readily engender charges of conflict of interest and/or the appearance of impropriety.

Nor should a county clerk as attorney conduct a practice which features frequent and regular applications to his or her own county clerk's office as a procedural step in obtaining for the client the object of the representation, for example, passport applications. Here, a not unreasonable expectation that the client will be afforded superior service and priority attention because of the attorney's status could well give rise to the appearance of impropriety.

Finally, a county clerk as attorney should refrain from any other dealings with his or her own public office which could reasonably be expected to engender the appearance of impropriety. To the extent that this catch-all stricture will involve a case by case evaluation of what is proper, the attorney should not test the outer limits but should err on the side of propriety. See Opinion 354, 99 N.J.L.J. 977 (1976); Opinion 106, 90 N.J.L.J. 497 (1967).

Subject to the above restrictions, we have determined that it is not improper for an attorney who is also a county clerk to conduct a private office practice.