NYSBA 1995-01-05

Can a part-time assistant district attorney and a part-time confidential law clerk to a County Court judge be law partners, and what limits does that put on their practice?

Short answer: The opinion concluded the two may be partners: the confidential clerk may not practice before the County Court or do criminal work, and the assistant DA may not appear before the judge who employs the clerk, though other assistants in the DA's office may, with screening.

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 Not binding precedent.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 672: A judge's confidential law clerk and an assistant DA as partners

Short answer: The opinion concluded that a part-time assistant district attorney and a part-time confidential law clerk to a County Court judge may be partners in private practice, with limits: the law clerk may not practice before any judge of the County Court or do criminal work, the assistant district attorney may not appear before the judge who employs the clerk, and other assistants in the district attorney's office may appear before that judge if proper screening is in place.

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

Attorney A was a part-time assistant district attorney in County X; Attorney B, A's law partner, was considering appointment as a confidential law clerk to a County Court judge in the same county. The committee addressed whether they could be partners and what limits the arrangement imposed.

On the law clerk's own practice, the committee explained the answer depends partly on the Judicial Department rules: the First Department bars confidential clerks from private practice entirely (22 NYCRR 603.21), while the Second and Third have no rule and the Fourth bars only practice in Supreme Court or County Court by certain clerks. Where practice is permitted, the Code of Judicial Conduct requires a judge's staff to observe the same standards as the judge (CJC Canon 3(B)(2)) and to avoid the appearance of impropriety (CJC Canon 2). Drawing on N.Y. State 357 and 361 (1974), the committee held a confidential clerk may practice in the county but not before the court that employs the clerk. So, outside the First Department, Attorney B could not practice before the County Court of County X but could appear in its other courts.

On the partner's practice, the committee noted only the Fourth Department has a rule (22 NYCRR 1022.15(b)) barring a clerk's partners from practicing before the employing judge. Because the clerk's disqualification flows from the Code of Judicial Conduct rather than one of the rules that triggers automatic imputation under DR 5-105(D), there was no automatic disqualification of Attorney A. Analyzing the facts, the committee adopted the Fourth Department's approach: the partner could appear before any County Court judge except the one employing the clerk, since influence over other judges was unlikely.

Because a district attorney's office is treated as the functional equivalent of a law firm (N.Y. State 492 (1978)), the same DR 5-105(D) analysis applied to it. Office-wide disqualification was not warranted absent actual prejudice, a real conflict, or a risk of misusing confidences. The committee directed that the office screen Attorney A from cases that might come before Attorney B's judge, and that on any appeal from a case Attorney A prosecuted to that judge's court, Attorney B be screened and the relationship disclosed to avoid the appearance of impropriety. Finally, because Attorney A, as a part-time assistant district attorney, could not practice criminal defense anywhere in the state, neither could his partner Attorney B (DR 5-105(D); N.Y. State 654 (1994)).

Currency note

This opinion was issued in 1995, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. The Code of Judicial Conduct has since been superseded by the Rules Governing Judicial Conduct, and the cited court rules have been renumbered. 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 confidential law clerk and an assistant DA be law partners?

A: Under this opinion, yes, outside the First Department (which bars confidential clerks from private practice altogether). The committee allowed the partnership subject to limits on each lawyer's practice and on the DA's office.

Q: Where can the confidential law clerk practice?

A: The clerk may practice elsewhere in the county but not before the County Court that employs the clerk, and may not do criminal work because the partner is a prosecutor.

Q: Can the partner-prosecutor or the rest of the DA's office appear before the employing judge?

A: The assistant DA partner may not appear before the judge employing the clerk. Other assistants in the office may, provided the office screens the partner from such matters and discloses the relationship where needed.

Background and rules framework

The opinion interpreted DR 5-105(D) of New York's former Code (imputation of disqualifications within a firm), the Code of Judicial Conduct (Canons 2 and 3(B)(2), applied to a judge's staff), and several Judicial Department rules including 22 NYCRR 603.21 (First Department) and 1022.15(b) (Fourth Department). The closest Model Rule analogues are Rule 1.10 (imputation), Rule 1.7 (concurrent conflicts), Rule 1.11 (government officers), and Rule 1.12 (former judge, arbitrator, or judicial-staff conflicts). New York replaced the Code with the Rules of Professional Conduct in 2009; the provisions cited here are historical.

Citations and references

Rules of Professional Conduct:

MR 1.10 (imputation of conflicts of interest)
MR 1.7 (concurrent conflicts of interest)
MR 1.12 (former judge, arbitrator, mediator, or judicial-staff)
MR 3.8 (special responsibilities of a prosecutor)
NY DR 5-105(D); 22 NYCRR 1022.15(b); CJC Canons 2, 3(B)(2)

Cases:

Solow v. W.R. Grace & Co., 83 N.Y.2d 303 (1994): screening sanctioned to avoid a conflict

Other opinions cited:

N.Y. State 357 and 361 (1974): a confidential clerk may not practice before the employing court
N.Y. State 492 (1978); N.Y. State 241 (1972): the DA's office treated as a law firm
N.Y. State 670 (1994): companion opinion on a part-time judge and assistant DA
N.Y. State 654 (1994): part-time prosecutor's bar imputed to partners

Source

Landing page: https://nysba.org/opinion-672/