Can a full-time judicial law clerk also practice law part-time, and how does it affect the judge's cases and appointments?

Plain-English summary

The Board addressed three questions about a full-time common pleas court law clerk who also practices law part-time. As a threshold matter, the outside practice is not itself prohibited; whether to allow it is primarily for each court to decide, and a clerk must follow the court's policies. If a court permits the outside practice, it must be conducted consistently with the Code of Professional Responsibility and Ohio Ethics Law, principally R.C. 102.03(A)(1) and DR 9-101.

Reading DR 9-101(B) and R.C. 102.03(A)(1) stringently, the Board concluded that a clerk, as a confidential assistant deemed to have substantial responsibility in every case before the judge, may not privately represent a client on any matter pending before that judge. Under DR 9-101(C), the clerk also may not represent clients in matters pending before other judges in the same division, because the clerk's prominence could be perceived as improper influence. Because the clerk cannot appear, no lawyer in the clerk's firm should undertake such representation either, a measure the Board found necessary to preserve public confidence.

On the judge's side, the Board concluded that under Canon 3(E)(1) the judge should not preside where a litigant is represented by the clerk's firm, though the Question One restriction should keep that situation from arising. Under Canons 3(C)(1) and 3(C)(4), the judge should not continue appointing the clerk's firm to represent indigent criminal defendants, because doing so would promote favoritism and require the judge's own disqualification.

Currency note

The Ohio Board flags this opinion as a "CPR Opinion" interpreting the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007. It also applies the former Ohio Code of Judicial Conduct, which was superseded by the current Ohio Code of Judicial Conduct effective March 1, 2009.

This opinion issued in 1997, before those changes. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current Ohio Rules of Professional Conduct and Code of Judicial Conduct before relying on any specific rule mentioned here.

Common questions

Q: Could a full-time judicial law clerk practice law part-time at all?

A: It depended on the court. The opinion concluded that the outside practice was not prohibited by rule and was primarily for each court to permit or forbid; if permitted, it had to comply with DR 9-101 and Ohio Ethics Law.

Q: Could the clerk's law firm appear before the judge the clerk serves?

A: No. The opinion concluded that because the clerk could not appear before the judge served or before other judges in the same division, members and associates of the clerk's firm were likewise barred from those matters.

Q: Could the judge keep appointing the clerk's firm to indigent criminal cases?

A: No. The opinion concluded that under Canons 3(C)(1) and 3(C)(4) the judge should not continue appointing the clerk's firm, because it promoted favoritism and would require the judge's disqualification.

Background and rules framework

The opinion interprets the former Ohio Code of Professional Responsibility DR 9-101(A), (B), and (C) (avoiding the appearance of improper influence and private employment after public service) and Ohio Ethics Law R.C. 102.03(A)(1), together with the former Ohio Code of Judicial Conduct Canon 3(E)(1) (disqualification) and Canons 3(C)(1) and 3(C)(4) (diligent, impartial administrative duties and appointments).

Citations and references

Rules of Professional Conduct:

• Former Ohio Code of Professional Responsibility DR 9-101(A), DR 9-101(B), DR 9-101(C)
• Former Ohio Code of Judicial Conduct Canon 3(E)(1), Canon 3(C)(1), Canon 3(C)(4)

Statutes:

• Ohio Rev. Code § 102.03(A)(1), (A)(5)

Other opinions cited:

• Ohio BPC Ops. 87-014, 87-036, 87-038; Ohio Ethics Commission Op. 96-004; State Bar of Michigan Op. CI-951; New York State Bar Op. 672; State Bar of Georgia Op. 38

See also

• Ohio BPC Op. 1996-006: Council Member Practicing in the City's Municipal Court
• Ohio BPC Op. 1994-014: Prosecutor Office-Sharing Arrangements

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-97-004.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804

                                     OFFICE OF SECRETARY


                                     OPINION 97-4
                                  Issued June 13, 1997

[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is
superseded by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]

SYLLABUS: Under DR 9-101(B) and DR 9-101(C) of the Ohio Code of Professional
Responsibility and Section 102.03(A)(1) of the Ohio Revised Code, a judicial law clerk
who is permitted by a common pleas court or a common pleas court judge to engage in
the outside practice of law may not privately represent a client on any matter pending
before the judge he or she serves or before any other judge in the same division of the
court where the judge serves. These restrictions extend to members and associates of the
law firm that privately employs the clerk as an attorney in the part-time practice of law.

Under Canon 3(E)(1) of the Ohio Code of Judicial Conduct, a common pleas court judge
should not preside in a case in which a litigant is represented by an attorney in the law
firm that employs the judge’s law clerk in the part-time practice of law.

Under Canons 3(C)(1) and 3(C)(4) of the Ohio Code of Judicial Conduct, a common
pleas court judge should not continue to appoint attorneys to represent indigents in
criminal cases when the attorneys are members or associates of a law firm that employs
the judge’s law clerk in the part-time practice of law.

OPINION: This opinion addresses questions regarding the outside practice of law by a
judicial law clerk employed by a common pleas court in Ohio.

   Is it proper for a full-time law clerk for a judge of a common pleas court to
   concurrently engage in the part-time private practice of law?

   Is it proper for a common pleas court judge to preside in a case in which a
   litigant is represented by a law firm that employs the judge’s law clerk in
   the part-time practice of law?

   Is it proper for a common pleas court judge to continue to appoint
   attorneys to represent indigents in criminal cases when the attorneys are
   members or associates of a law firm that employs the judge’s law clerk in
   the part-time practice of law?

Question One

   Is it proper for a full-time law clerk for a judge of a common pleas court to
   concurrently engage in the part-time private practice of law?

A judicial law clerk is governed both as an attorney and as a judicial employee. As a
judicial employee of a state court in Ohio, a law clerk is subject to Ohio Ethics Law and
to the rules and policies of the court he or she serves. As an attorney, a law clerk is
subject to the Ohio Code of Professional Responsibility. A judge who appoints a judicial
law clerk is subject to these authorities, as well as to the Ohio Code of Judicial Conduct.

The outside private practice of law by a judicial law clerk is not prohibited under the
Ohio Code of Professional Responsibility, Ohio Ethics Law, or the Ohio Code of Judicial
Conduct. It is primarily an issue for each court to decide. [For advice regarding the
outside practice of law by a non-judicial public official or employee see Ohio Ethics
Commission, Op. 96-004 (1996).]

A law clerk should review and abide by a court’s policies or rules regarding outside
employment. Courts must operate in a manner that assures each citizen that cases will be
decided fairly and impartially. The conduct of each court employee is crucial to
maintaining the public’s confidence in the integrity and impartiality of the judiciary.

Some courts have a clear policy prohibiting the outside practice of law by a court
employee who is an attorney. For example, the Supreme Court of Ohio sets forth its
policy in Section V of the Employee Code of Conduct of the Supreme Court of Ohio.
“Any attorney employed by the Court should not practice law in any federal, state, or
local court, except in an official capacity, and should not perform legal services for any
private client for compensation.” The rule permits narrow exceptions for legal work
necessary to the management of personal and family affairs. See Employee Code of
Conduct of the Supreme Court of Ohio, Section V (1989). Federal judicial employees
also have restrictions. Canon 4(D) of the Code of Conduct for Judicial Employees
prohibits the practice of law by judicial employees of the Judicial Branch of federal
government, allowing narrow exceptions for pro se, personal, family, and pro bono
activities. See Code of Conduct for Judicial Employees, Committee on Codes of
Conduct, Judicial Conference of the United States (Nov. 1996).

Policies or rules prohibiting the outside practice of law by a court employee reflect an
effort by a court to remain beyond reproach. By prohibiting a judicial law clerk from the
outside practice of law, a court can avoid appearances of impropriety and conflicts of
interest that will arise when a confidential assistant to a judge practices law.

Nevertheless, some courts may determine that the outside practice of law by a judicial
law clerk is acceptable if conducted in an ethical manner. For example, a court might
decide it is necessary for a part-time judicial law clerk to practice law outside his or her
public employment in order to supplement his or her public earnings.

If a court or a judge permits a law clerk to engage in the outside practice of law, the
public employment and the outside practice of law must be conducted in a manner

consistent with the Ohio Code of Professional Conduct and Ohio Ethics Law. The
pertinent rule under Ohio Ethics Law is Section 102.03(A)(1) of the Ohio Revised Code
(Baldwin Supp. 1997).

   R.C. §102.03(A)(1) No present or former public official or employee shall,
   during his [her] public employment or service or for twelve months
   thereafter, represent a client or act in a representative capacity for any
   person on any matter in which he [she] personally participated as a public
   official or employee through decision, approval, disapproval,
   recommendation, the rendering of advice, investigation, or other
   substantial exercise of administrative discretion.

The term “matter” in the above rule “includes any case, proceeding, application,
determination, issue, or question. The term “represent” “includes any formal or informal
appearance before, or any written or oral communication with, any public agency on
behalf of any person.” See Ohio Rev. Code Ann. § 102.03(A)(5) (Baldwin Supp. 1997).

The pertinent rule in the Ohio Code of Professional Responsibility is DR 9-101.

               DR 9-101 AVOIDING EVEN THE APPEARANCE

   DR 9-101(A) A lawyer shall not accept private employment in a matter
   upon the merits of which he [she] has acted in a judicial capacity.

   DR 9-101(B) A lawyer shall not accept private employment in a matter in
   which he [she] had substantial responsibility while he [she] was a public
   employee.

   DR 9-101(C) A lawyer shall not state or imply that he [she] is able to
   influence improperly or upon irrelevant grounds any tribunal, legislative
   body, or public official.

A judicial law clerk, as a confidential assistant to a judge and as a member of a judge’s
staff, must act ethically, responsibly, and with dignity appropriate to the judicial position.
A law clerk should observe high standards of fidelity and diligence. Public confidence in
the fairness and impartiality of judicial decisions is paramount. For these reasons, the
Board interprets the above rules stringently in answering the question raised.

First, it is the Board’s view that under DR 9-101(B) and R.C. 102.03(A)(1) a judicial law
clerk may not privately represent a client on any matter pending before the judge he or
she serves. A judge has substantial responsibility and personal participation in every case
pending in his or her court. By serving as a confidential assistant to a judge, a judicial
law clerk is deemed to have substantial responsibility and personal participation in every
case pending before the judge.

Second, it is the Board’s view that under DR 9-101(C) a judicial law clerk may not
privately represent clients through court appearance or legal work performed outside the

courtroom on any matter pending before other judges in the same division of a common
pleas court as the judge he or she serves. A judicial law clerk has some level of
prominence within the division of the court on which he or she serves that could be
perceived by the public as an improper influence in matters pending before the judge
served or before other judges in the same division of the court. An attorney’s private
practice of law in the same division of the court of his or her public employment as a
judicial law clerk is conduct that implies or may imply an ability to influence improperly
a tribunal.

Third, it is the Board’s view that since a judicial law clerk should not practice law in
matters pending before the judge he or she serves or before other judges in the same
division of the court then no lawyer in a law firm that employs the clerk in the practice of
law should undertake representation in the matter. The extension of this restriction to
lawyers in the firm is a measure necessary to maintain public confidence in the fair and
impartial operation of the courts. The public would not be instilled with such confidence
if attorneys who are members of the law firm that employs the judicial law clerk represent
clients before any of the judges in the division of the court where the judicial law clerk
serves.

These restrictions are not unique or unwarranted. The Code of Judicial Conduct places
similar restrictions on the practice of law by part-time judges and part-time
referees/magistrates. Under Section (A)(2) of Compliance With the Code of Judicial
Conduct, a part-time referee/magistrate “should not practice law in the court on which he
[she] serves or in any court subject to the appellate jurisdiction of the court on which he
[she] serves, or act as lawyer in a proceeding in which he [she] has served as a judge or in
any other proceeding related thereto.” See Ohio SupCt., Bd of Comm’rs on Griev &
Disc, Ops. 87-014 (1987), 87-036(1987), 87-038 (1987).

In other states, ethics committees have advised that a part-time judicial clerk may not
practice in the court where the judge serves. See e.g. State Bar of Michigan, Op. CI-951
(1983), Philadelphia Bar Ass’n, Op. 80-10 (undated). One state permitted a part-time
assistant district attorney to form a partnership with a part-time judicial law clerk, but
advised that the clerk could not appear before any judge of the county court or practice
criminal law and the assistant district attorney could not appear before the judge for
whom the partner clerks. See New York State Bar Ass’n, Op. 672 (1995). One state
advised that a superior court judge may not allow his law clerk to prepare appellate briefs
on behalf of criminal defendants sentenced to death. See State Bar of Georgia, Op. 38
(1984).

In conclusion, this Board advises that under DR 9-101(B) and DR 9-101(C) of the Ohio
Code of Professional Responsibility and Section 102.03(A)(1) of the Ohio Revised Code,
a judicial law clerk who is permitted by a common pleas court or a common pleas court
judge to engage in the outside practice of law may not privately represent a client on any
matter pending before the judge he or she serves or before any other judge in the same
division of the court where the judge serves. These restrictions extend to members and
associates of the law firm that privately employs the clerk as an attorney in the part-time
practice of law.

Question Two

   Is it proper for a common pleas court judge to preside in a case in which a
   party is represented by an attorney in the law firm that employs the judge’s
   law clerk in the part-time practice of law?

Canon 3(E)(1), as amended effective May 1, 1997, of the Ohio Code of Judicial Conduct
requires that “[a] judge shall disqualify himself or herself in a proceeding in which the
judge’s impartiality might reasonably be questioned.” This rule was formerly numbered
Canon 3(C)(1). Under the general standard of this rule “[a]ny conduct that would lead a
reasonable man [person] knowing all the circumstances to the conclusion that the judge’s
‘impartiality might reasonably be questioned’ is a basis for the judge’s disqualification.”
E.W. Thode, Reporter’s Notes to Code of Judicial Conduct, 60 (1973). In this Board’s
view, a reasonable person could conclude that the impartiality of a judge might
reasonably be questioned when a litigant is represented by an attorney in the law firm that
employs the judge’s clerk.

In conclusion, this Board advises that under Canon 3(E)(1) of the Ohio Code of Judicial
Conduct, a common pleas court judge should not preside in a case in which a litigant is
represented by an attorney in the law firm that employs the judge’s law clerk in the part-
time practice of law. As a practical matter, this situation should not present itself to the
judge, because as advised in Question One the restriction as to a judicial law clerk
representing clients before the judge whom he or she serves and before other judges in the
same division of the court is extended to members and associates of the law firm that
employs the clerk as an attorney in the firm.

Question Three

   Is it proper for a common pleas court judge to continue to appoint
   attorneys to represent indigents in criminal cases when the attorneys are
   members or associates of a law firm that employs the judge’s law clerk in
   the part-time practice of law?

Appointments are part of a judge’s administrative responsibilities. Under Canon 3(C)(4),
as amended effective May 1, 1997, “[a] judge shall not make unnecessary appointments.
A judge shall exercise the power of appointment impartially and on the basis of merit. A
judge shall avoid nepotism and favoritism. A judge shall not approve compensation of
appointees beyond the fair value of services rendered.” This prohibition was formerly
number Canon 3 (B)(4).

A judge’s act of appointing a member of a law firm to represent an indigent defendant
when the law firm employs the judge’s law clerk promotes rather than avoids favoritism.
In addition to possibly being perceived as an act of favoritism under Canon 3(C)(4), such
appointment may not be a diligent discharge of administrative responsibilities under
Canon 3(C)(1), as amended effective May 1, 1997. The appointment would result in the
judge’s disqualification from the case. As the Board advised in Question Two, a judge

should not preside in a case in which a litigant is represented by an attorney in the law
firm that employs the judge’s law clerk in the part-time practice of law. The judge would
be appointing an attorney to a case knowing that the judge would need to disqualify
himself or herself.

In conclusion, the Board advises that under Canons 3(C)(1) and 3(C)(4) of the Ohio Code
of Judicial Conduct, it is not proper for a common pleas court judge to continue to
appoint attorneys to represent indigents in criminal cases when the attorneys are members
or associates of a law firm that employs the judge’s law clerk in the part-time practice of
law.

Advisory Opinions of the Board of Commissioners on Grievances and Discipline are
informal, nonbinding opinions in response to prospective or hypothetical questions
regarding the application of the Supreme Court Rules for the Government of the
Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the
Code of Professional Responsibility, the Code of Judicial Conduct, and the
Attorney’s Oath of Office. Pursuant to Section 102.03 of the Ohio Revised Code, the
requester may reasonably rely on the opinion as it applies to Ohio Ethics Law and
related statutes.