January 16, 2018
Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).
This responds to your inquiry (17-171) asking whether it is ethically permissible for a part-time justice to serve as a law clerk to a Supreme Court Justice.
Pursuant to the Rules Governing Judicial Conduct, a part-time judge may also hold a position in public employment that is not incompatible with judicial office and does not interfere with the proper performance of judicial duties (see 22 NYCRR 100.6[B]). The Committee has previously advised that it is ethically permissible to concurrently serve as both a part-time judge and a full-time law clerk. However, if both positions are located within the same county, you must be insulated in the superior court from all matters that come before you at the local level. In these situations, the superior court judge must disclose the insulation and the basis for it on the record to all parties and their counsel, and because disclosure is mandated, the judge must recuse if any party appears without counsel.
As you wish to serve simultaneously as a Unified Court System employee and a part-time justice, you may wish to contact the Nonjudicial Ethics Helpline (1-888-28-ETHIC) for guidance on the dual employment rule (see 22 NYCRR 50.3).
Enclosed, for your convenience, are Opinions 16-162 and 07-194, as modified by 16-162, which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Div., First Dep’t (Ret’d)
Hon. Margaret T. Walsh
Family Court Judge
Acting Justice, Supreme Court