May 8, 1997
Based on the facts presented, a confidential secretary to a judge may ethically
be permitted to work part-time for an attorney, provided that the attorney
does not appear before the judge and the secretary performs no services
in connection with any pending matter before the judge that may involve
the attorney. In the event an appearance is made by the attorney before
the judge, there must be recusal by the judge.
22 NYCRR 100.3(E)(1).
A full-time judge asks the Committee's opinion regarding possible part-time
employment by the judge's confidential secretary. As framed by the judge,
the situation is as follows:
The judge has also informed the Committee that the attorney will not be appearing before the judge as long as the secretary is employed by the attorney. Further, it is noted that there are nine Family court judges in the county.A confidential secretary to a Family Court Judge is seeking part-time employment with an attorney who litigates a substantial number of Family Court matters. Her position will involve administrative duties - primarily billing. Her duties would not have any connection with matters pending before the judge for whom she is employed.
Based on the facts presented, the Committee believes that it is ethically permissible for the judge to allow the secretary to accept the part-time position. Although the attorney has indicated that he will not be appearing before the judge, should such an appearance occur, the judge must exercise recusal. 22 NYCRR 100.3(E)(1). This would not appear to create an undue burden on the court in view of the number of Family Court judges in the county. Additionally, it is to be stressed that, neither as the judge's secretary nor as the attorney's part-time employee, may the secretary be allowed to work on any matter pending before the judge that may involve the attorney.
Finally, the Committee notes that originally the judge directed the inquiry to the Office of Court Administration. In response, counsel to the Office of Court Administration stated that the question of a potential conflict with court duties, as an administrative matter, could not be addressed until the ethical issue is determined. Accordingly, this opinion is not intended to address any administrative issues that are to be resolved.