Can an elected county clerk keep a private law practice, and what limits do the conduct rules place on it?

Plain-English summary

An elected county clerk wanted to continue practicing law while in office. His practice consisted exclusively of representing parties in real-property transactions, and he confined it to counties adjacent to the one where he served as clerk, not representing parties in transactions in his own county (¶ 1). The clerk asked whether the Rules of Professional Conduct limited his practice while he served (¶ 5). The committee noted the statutory duties of a county clerk and that the General Municipal Law lets counties adopt codes of ethics and ethics boards, but limited its own analysis to the Rules (¶¶ 2-5, 7).

The committee applied Rule 1.11(d), which bars a lawyer currently serving as a public officer from participating in a matter in which the lawyer participated personally and substantially while in private practice, except as law expressly provides (¶ 6). It stressed that the opening phrase of Rule 1.11(d) gives priority to any law or regulation governing the official's conduct, such as the General Municipal Law, Public Officers Law, County Law, Municipal Home Rule Law, and the rules for nonjudicial court employees, none of which the committee opined on (¶ 7). The committee then applied Rule 1.11(f), which forbids a lawyer holding public office from using the position to obtain a special advantage in legislative matters against the public interest, to influence a tribunal to favor the lawyer or a client, or to accept anything of value offered to influence the lawyer's official actions (¶ 8).

Drawing on N.Y. State 966 (2013), about a town clerk representing a client in another town's court, the committee explained that Rule 1.11(f)(2) does not categorically bar representation: if the clerk's official duties would not touch the client's matter, and the clerk does not seek to influence the home court beyond performing assigned ministerial duties (such as assigning docket numbers), the rule is not violated (¶¶ 9-10). Applying that here, the clerk's transactional work in adjacent counties would not involve any matter in his own county, and if a client also had a matter pending in the clerk's county, the clerk must not seek to influence it beyond ministerial duties (¶ 10). The committee added that using the clerk position to get special treatment for a client before the board of supervisors would violate Rule 1.11(f)(1) absent a good-faith judgment that the client's interests accord with the public interest, and that running a business as a vehicle to receive value to influence official judgment would violate Rule 1.11(f)(3) (¶ 11).

In practice

Under the New York rules as they stood at the time of the opinion, the committee held that holding the office of county clerk does not by itself bar a private law practice; the limits come from Rule 1.11(d) and (f). The opinion makes two points central. First, any statute or regulation governing the office takes priority over the Rules, so the clerk must check the General Municipal Law, Public Officers Law, County Law, and related provisions, which the committee did not interpret. Second, under Rule 1.11(f) the clerk must keep the public office and the private practice separate: no participating in matters before the clerk's own office that the clerk handled privately, no using the office to influence a tribunal or obtain special treatment for a client, and no accepting value meant to influence official conduct. The committee read Rule 1.11(f)(2) as fact-dependent rather than categorical, turning on whether the clerk's duties touch the client's matter and whether the clerk stays within ministerial functions.

Common questions

Q: Can a sitting county clerk also practice law privately?

A: Yes, subject to any law governing the office. The committee concluded the Rules permit it if the clerk observes the Rule 1.11(d) and (f) limits (¶ 12).

Q: Do other laws override the conduct rules here?

A: Yes. The committee stressed that Rule 1.11(d)'s opening phrase gives priority to laws governing the office (General Municipal Law, Public Officers Law, County Law, and others), which it did not interpret (¶ 7).

Q: Can the clerk represent a client whose matter is also pending in the clerk's own county?

A: Possibly, if the clerk's official duties do not touch that matter and the clerk does not seek to influence it beyond performing ministerial duties such as assigning docket numbers (¶¶ 9-10).

Q: What uses of the office are clearly prohibited?

A: Using the position to obtain special treatment for a client, to influence a tribunal in a client's favor, or to accept anything of value meant to influence official conduct, under Rule 1.11(f)(1)-(3) (¶¶ 8, 11).

Background and rules framework

The opinion interprets New York Rule 1.11(d) and (f), which govern lawyers currently serving as public officers, corresponding to ABA Model Rule 1.11. The analysis turns on keeping the clerk's public office and private practice separate and on the priority that statutes governing the office hold over the Rules.

Citations and references

Rules of Professional Conduct:

• MR 1.11 / NY RPC 1.11(d), (f) (current public officers; using public office for private advantage)

Statutes:

• N.Y. County Law § 525 (duties of a county clerk)
• N.Y. General Municipal Law §§ 806, 808 (county codes of ethics and ethics boards)

Other opinions cited:

• N.Y. State 966 (2013): a town clerk representing a client in another town's court; ministerial-duties limit on Rule 1.11(f)(2)

See also

• NY State Bar Op. 1071: Partisan political activity by a police-oversight lawyer
• NY State Bar Op. 1065: Part-time prosecutor's firm suing a separate village

Source

• Landing page: https://nysba.org/ethics-opinion-1056/