April 23, 2009
Digest: It is ethically impermissible for an appellate court to engage volunteer attorneys who are being paid stipends by private law firms in exchange for deferred employment to serve temporarily in a Judicial Fellowship Program.
Rules: 22 NYCRR 100.1; 100.2; 100.2(A); 100.2(C); Opinions 09-111(A); 07-04; 03-69.
An appellate court judge asks whether it is ethically permissible for the appellate court to establish a Judicial Fellowship Program for new attorneys whose private employers have deferred their employment due to the current difficult economic conditions. According to the judge, the Fellowships will be temporary, volunteer positions. The judge also advises that some law firms are offering graduating students small stipends during the period of deferment while other law firms have offered to increase their stipends for new attorneys that use the deferment period to perform “worthwhile and much-needed legal services elsewhere, and gain valuable experience in the process.” In the judge’s view, courts may be a “worthwhile and suitable place for new attorneys deferred from their anticipated employments to serve the public good and gain experience that will prove valuable to them in their future legal careers.”
The inquiring judge acknowledges the need to structure the Fellowship Program to avoid ethics difficulties, and details the ways in which the court intends to do so, including requiring any deferred attorney to execute appropriate written agreements with the court addressing issues of, inter alia, loyalty, confidentiality and proprietary information, and directing that the attorney must not be subject to any work demands by his/her deferring law firm.
A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). Therefore, a judge must not convey or permit others to convey the impression that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]).
In Opinion 09-111(A), the Committee responded to a similar inquiry concerning attorneys whose employers had terminated their employment and recent law school graduates who are unemployed. There, the Committee advised that an appellate court could engage attorneys so situated to perform work for the court on a temporary basis without compensation so long as the court insulates them from all cases involving any employer for whom they worked during the two years immediately prior to the date they begin working for the appellate court, and the judge who engages an attorney in his/her chambers disqualifies him/herself in all cases involving the attorney’s prior employer(s). In the Committee’s view, these steps would ensure that the court avoids even the appearance of impropriety (see id.; 22 NYCRR 100.2).
The proposed Fellowship Program is distinguishable, as the participating attorneys would maintain their relationships with the law firms that have hired them but have deferred their employment starting dates. They also would be paid a stipend by these same law firms during their volunteer Court employment.
The position of law clerk is one of “particular trust and confidence” (Opinion 07-04). Therefore, a law clerk’s activities must be evaluated in light of the possible impact those activities may have on the judicial obligation to maintain public confidence in the independence and impartiality of the judiciary and to avoid allowing others to convey the impression that they are in a special position to influence a judge (see 22 NYCRR 100.1;100.2[A], [C]; Opinion 03-69). In Opinion 03-69, the Committee advised that a judge’s law clerk should not co-author with a law firm articles for publication in a local bar journal as it could create an appearance of undue access to or influence with a judge. The attorneys who would participate in the proposed Fellowship Program would have even closer ties to private law firms as they have promised to employ the attorneys and will pay them during their Fellowships.
The Committee acknowledges that the courts would benefit from the additional resource the attorneys participating in the proposed Fellowship Program represent, and that the attorneys would gain valuable experience in the process. However, the perception that private law firms also may benefit from undue access to, or influence with, the court or judges, however unlikely, or that they will simply create “good will” is nearly impossible to dispel. This is so despite the substantial safeguards the inquiring judge outlines as a means to avoid any appearance of impropriety.
The Committee also believes that it may be unrealistic to expect an attorney who has a commitment for employment from a law firm that is paying him/her a stipend to suppress all loyalty to that firm both for the duration of his/her participation in the proposed Fellowship Program and after assuming his/her position with the law firm. Even were that possible, a contrary perception or reasonable concern would likely still linger in some reasonable minds.
For the foregoing reasons, it is the Committee’s opinion that it is ethically impermissible for a court to engage volunteer attorneys who are being paid stipends by private law firms in exchange for deferred employment in the proposed Judicial Fellowship Program.