Can a law clerk to a Supreme Court Justice also hold another part-time State government job?

Plain-English summary

The committee was asked whether a part-time law clerk to a Supreme Court Justice may at the same time hold a part-time position in another State government office. It first noted that, to the extent a statute or court rule applies (for example, Judiciary Law Section 471 and various Appellate Division rules), it expressed no judgment, confining itself to the ethical aspects.

On the ethics, the committee said the answer depends on the nature of the work in the other position. If that work includes practicing law, it would be improper for the clerk to participate in any matter in the Supreme Court. Even if he need not appear in court, if the matter he worked on was one likely to be brought before the Supreme Court, his association with one of that Court's Justices would inevitably create an appearance of ability to influence the Court, in violation of Canon 9 (see DR 9-101(C)). The committee added that his duty as a law clerk to help the Court reach an impartial decision would conflict with his responsibility, as a public employee in the other office, to support the action taken by that office, with DR 5-105(A) and DR 9-101(B) relevant by analogy, and EC 9-1 and EC 8-8 reinforcing that a lawyer who is a public officer should not engage in activities where his interests may conflict with his official duties.

The committee closed with the converse: if the second position is totally unrelated to the practice of law, and the clerk's work would not fall in an area where legal problems might arise and be presented to the Supreme Court, there would be no impropriety in his accepting full or part-time employment in that other State office.

Currency note

This opinion was issued in 1975, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009; the special conflict rules for current and former government officers and employees are now in Rule 1.11, and the rules for a lawyer serving as a law clerk to or other staff of an adjudicative officer are addressed by Rule 1.12. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a judge's law clerk moonlight in another State office?

A: Under this opinion, yes, but only if that other work does not involve practicing law in the Supreme Court or matters likely to come before it.

Q: Why is law-related second work a problem?

A: Per the opinion, the clerk's association with a Justice would create an appearance of ability to influence the Court, and his duty to help the Court decide impartially would conflict with his duty to support his other office's position.

Q: When is the second job clearly fine?

A: The committee said there is no impropriety where the second position is wholly unrelated to law practice and does not touch areas that might come before the Supreme Court.

Background and rules framework

The opinion applied EC 8-8 (public officer's conflicting interests), EC 9-1 and Canon 9 (public confidence and appearance of impropriety), and DR 5-105(A), DR 9-101(B), and DR 9-101(C) by analogy, while declining to interpret the applicable statutes and court rules. The current New York analogues are Rule 1.11 (special conflicts for government officers and employees) and Rule 1.12 (former judge, law clerk, arbitrator, or mediator).

Citations and references

Rules of Professional Conduct:

• MR 1.11 (special conflicts for government lawyers)
• MR 1.12 (former judge, law clerk to a judge, arbitrator, or mediator)
• NY Canon 9; EC 8-8, 9-1; DR 5-105(A), 9-101(B), (C)

Other opinions cited:

• N.Y. State 361 (1974); N.Y. State 357 (1974); N.Y. State 280 (1973): part-time public service and Supreme Court practice

See also

• NY State Bar Op. 392: State estate-tax attorney in Surrogate's Court
• NY State Bar Op. 397: Investigation-agency member defending criminals
• NY State Bar Op. 380: Arbitrator practicing before the same small claims part

Source

• Landing page: https://nysba.org/opinion-376/