May a town or village justice use a confidential law clerk appointed and paid by the county, and is there a conflict when the district attorney appears before the justice?

Plain-English summary

Most town and village justices are not lawyers and often need legal help, but they are barred from ex parte discussions, including with prosecutors. The committee was asked whether a justice may accept advice from a confidential law clerk appointed by the county, and whether a conflict arises when the district attorney appears before a justice whose clerk is a county employee. The committee stressed it opines only on conduct under the Code of Judicial Conduct (CJC) and does not decide questions of law, such as whether the county may create or pay for the clerk position.

Under CJC Canon 3(A)(4), a judge may not consider ex parte communications, but may consult court personnel whose function is to aid the judge in adjudicative responsibilities, and may obtain the advice of a disinterested expert on the law if the judge notifies the parties of the person consulted and the substance of the advice and lets them respond. The committee held that whether a county-paid clerk is "court personnel" turns on the duties and scope of employment, not the source of pay. Drawing on Canon 3(A)(6), it concluded the clerk must be under the justice's direction and control as to court work; a clerk working full time, or part time but subject to the justice's control on all court work, would be "court personnel." Analogizing to DR 5-107, which lets a lawyer be paid by someone other than the client so long as the payer does not direct the lawyer's professional judgment, the committee found no per se bar to court personnel paid by a county, provided the justices are aware of the arrangement and the clerks do not let the payer regulate their judgment.

On conflict, the committee held that if the district attorney or another county official had input into the clerk's selection or compensation, or the clerk reported to that official, the clerk would have a disqualifying personal interest. But it would not presume divided loyalty merely because the clerk and the district attorney are both county employees (citing N.Y. State 376). If the clerk is not "court personnel," the justice may consult the clerk only by following the disinterested-expert procedure of notice and opportunity to respond.

Currency note

This opinion was issued in 1988, under New York's former Code of Professional Responsibility and the then-current Code of Judicial Conduct. New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009, and judicial conduct is now governed by the Rules Governing Judicial Conduct (22 NYCRR Part 100). 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 town or village justice use a law clerk the county appoints and pays?

A: Yes, if the clerk is court personnel. The committee held the clerk is "court personnel" the justice may consult where the clerk works under the justice's sole direction and control on court work, regardless of who pays the salary.

Q: Is it a problem that the clerk and the district attorney both work for the county?

A: Not by itself. The committee held it would not presume a conflict merely from shared county employment, but the clerk would be disqualified if the DA had a role in choosing or paying the clerk or the clerk reported to the DA.

Q: What if the clerk is not "court personnel"?

A: Then the justice must follow the disinterested-expert route. The committee held that under Canon 3(A)(4) the justice may consult such a clerk only with notice to the parties of the person and substance of the advice and an opportunity to respond.

Background and rules framework

The opinion applied CJC Canon 3(A)(4) and Canon 3(A)(6) on ex parte communications, court personnel, and disinterested experts, and reasoned by analogy to DR 5-107(A)(1) and (B), which permit a lawyer to be compensated by a third party so long as the payer does not direct the lawyer's professional judgment. The closest current Model Rule analogues are Rule 5.4(c) (a third party paying for legal services may not direct the lawyer's judgment) and, for judicial-candidate compliance, Rule 8.2(b).

Citations and references

Rules of Professional Conduct:

• MR 5.4(c) (a person who pays for a lawyer's services may not direct the lawyer's professional judgment)
• MR 8.2(b) (lawyer who is a candidate for judicial office must comply with the applicable Code of Judicial Conduct)
• NY DR 5-107, 5-107(A)(1), 5-107(B); CJC Canon 3(A)(4), 3(A)(6)

Other opinions cited:

• N.Y. State 361 (1974); N.Y. State 392 (1975): part-time court law clerks and limits on private practice
• N.Y. State 376 (1975): no presumed conflict merely from shared government employment

See also

• NY State Bar Op. 985: A former law clerk appearing before the employing judge
• NY State Bar Op. 594: Administrative law judges acting as arbitrators
• NY State Bar Op. 586: Political contributions by judges and judicial candidates

Source

• Landing page: https://nysba.org/opinion-593/