Ezel / Ethics Opinions / NYSBA
NYSBA 2013-05-21

Can a lawyer who works as a town court clerk represent a private client who has a matter pending in the clerk's own court?

Short answer: Yes, subject to limits. No ethics rule categorically bars it. If the clerk has no role or only ministerial duties in the client's matter before the clerk's court, the clerk may represent the client elsewhere; if the clerk has substantive duties that could influence the tribunal, Rule 1.11(f)(2) bars it unless the clerk informs the judge so the judge can act. The clerk may never use the office to influence either court.
Currency note: this opinion is from 2013
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NY State Bar Ethics Opinion 966: Town court clerk in private practice

Short answer: No ethics rule categorically bars a lawyer who is a town court clerk from representing a private client who also has a matter pending in the clerk's court; if the clerk has no role or only ministerial duties in that matter the representation is permitted, but if the clerk has substantive duties that could influence the tribunal, Rule 1.11(f)(2) prohibits it unless the clerk informs the judge so the judge can take appropriate action, and the clerk may never use the office to influence either court.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

View original opinion

Plain-English summary

A lawyer who is a court clerk in Town Court A wanted to represent a private client in a matter pending in Town Court B, when that same client also had a matter pending in Town Court A in which the clerk did not represent the client. The committee answers only under the Rules of Professional Conduct, assuming court rules and government ethics codes (such as the Chief Judge's Rules Governing Conduct of Nonjudicial Court Employees) permit the outside practice, since those legal questions are outside its jurisdiction (¶¶ 1-3).

The committee identifies Rule 1.11(f)(2) as the rule most likely implicated: a lawyer holding public office may not use the public position to influence, or attempt to influence, a tribunal in favor of a client. It reads "public office" to cover court clerks, drawing on Rule 1.11's concern that a government position not be leveraged to benefit a private client (¶¶ 4-5).

Applying the rule, the result depends on the clerk's duties. If the clerk has no duties in the client's Town Court A matter (and does not otherwise seek to influence that court), Rule 1.11(f)(2) does not bar representing the client in Town Court B (¶ 6). The same is true if the clerk's duties are solely ministerial, such as assigning docket numbers, because the clerk would not be in a position to influence the tribunal (¶ 7). But if the clerk's responsibilities include research, advice, or otherwise assisting the judge, the clerk may be in a position to influence the tribunal, and the representation is prohibited unless the clerk informs the Town Court A judge of the proposed relationship so the judge can act, including by ensuring the clerk does not participate or exert influence (¶ 8).

The opinion adds two limits that apply even where representation is otherwise permitted: Rule 1.11(f)(2) bars the clerk from using the office to try to influence either Town Court A or Town Court B; and Rule 1.7(a)(2)'s personal-interest conflict rule applies to government lawyers, so the clerk may not represent the client where the clerk's own interests, including government employment, create a significant risk to professional judgment, absent the client's informed consent (¶¶ 9-10).

In practice

Under this opinion, as the rules stood at the time, the dividing line is whether the clerk's official duties put him in a position to influence the tribunal handling the client's matter. The opinion holds that a clerk with no role or only ministerial duties may represent the private client in the other court, while a clerk with substantive, judge-assisting duties may do so only after informing the judge so the judge can take appropriate action (¶¶ 6-8).

Per the opinion, two constraints apply regardless: the clerk may not use the public office to influence either court under Rule 1.11(f)(2), and the clerk must watch for a Rule 1.7(a)(2) personal-interest conflict arising from the government employment (¶¶ 9-10). The committee expressly did not opine on the court rules and government ethics codes that may independently restrict the clerk's outside practice (¶ 11).

Common questions

Q: Can a lawyer who is a court clerk maintain a private practice?

A: As an ethics matter, the opinion holds no rule categorically bars it, though court rules and government ethics codes (which the committee did not address) may impose their own limits (¶¶ 3, 11-12).

Q: Can the clerk represent a client who also has a case in the clerk's own court?

A: Yes, if the clerk has no role or only ministerial duties in that case. If the clerk has substantive duties that could influence the tribunal, the representation is barred unless the clerk informs the judge so the judge can act (¶¶ 6-8).

Q: What does Rule 1.11(f)(2) prohibit here?

A: Per the opinion, it bars the clerk from using the public office to influence, or attempt to influence, either town court in favor of the client (¶ 9).

Q: Does a personal-interest conflict ever bar the representation?

A: It can. The opinion notes Rule 1.7(a)(2) applies to government lawyers, so the clerk may not represent the client, absent informed consent, where the clerk's own interests create a significant risk to professional judgment (¶ 10).

Background and rules framework

The opinion interprets Rule 1.11(f)(2) (a lawyer in public office may not use the position to influence a tribunal for a client; analogous to Model Rule 1.11) and Rule 1.7(a)(2) (personal-interest conflicts; Model Rule 1.7), and references Rule 1.11(d)(2) (negotiating for private employment while participating personally and substantially in a matter). It treats "public office" as covering nonjudicial court employees such as clerks.

The committee repeatedly limits itself to the Rules, noting that statutes, the Chief Judge's Rules Governing Conduct of Nonjudicial Court Employees (22 N.Y.C.R.R. sections 50.1-50.6), and local ethics codes may independently restrict the clerk's outside practice.

Citations and references

Rules of Professional Conduct:

  • Model Rule 1.11 / NY Rule 1.11(f)(2) (no using public office to influence a tribunal for a client); Rule 1.11(d) (current government lawyers)
  • Model Rule 1.7 / NY Rule 1.7(a)(2) (personal-interest conflicts)

Other authorities referenced:

  • Chief Judge's Rules Governing Conduct of Nonjudicial Court Employees, 22 N.Y.C.R.R. sections 50.1-50.6 (noted as outside the committee's jurisdiction)

See also

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