July 30, 2013
This responds to your inquiry (13-78) asking whether your law clerk may continue to work on cases prosecuted by the District Attorney’s office while your law clerk is the District Attorney’s opponent in the upcoming election.
A judge must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge’s law clerk who is the judge’s personal appointee is prohibited from certain political activities as set forth in §100.5(C) of the Rules Governing Judicial Conduct. However, a judge’s law clerk may, in the absence of special circumstances, engage in political activity not specifically prohibited by the Rules (see Opinion 90-102 [Vol. VII]).
In Opinion 07-11, the Committee advised that a judge may permit his/her law clerk to oppose the District Attorney in an upcoming election, subject to the applicable Rules Governing Judicial Conduct and Part 50 of the Rules of the Chief Judge and, as long as the judge is satisfied that the law clerk can remain objective, the judge need not preclude the law clerk from working on cases in which the District Attorney appears.
Therefore, assuming you believe that your law clerk can remain objective, you need not preclude your law clerk from working on cases the incumbent District Attorney handles in your court.
I have enclosed a copy of Opinions 07-11 and 90-102 (Vol. VII) for your convenience.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)