I married a court clerk with ministerial duties assigned to a judge I regularly appear before. Do my firm and I need to take precautions when appearing before that judge?

Plain-English summary

The inquiring attorney concentrates the bulk of the attorney's practice in a particular area of law, and the attorney and firm continuously appear before every judge in a specialized court. The attorney recently married a court clerk assigned to a judge in that court. The attorney explains the clerk's duties are ministerial, including assisting the judge in obtaining files and setting trial dates, and asked whether the attorney and firm must take precautionary measures when appearing before this judge.

The panel said it is not likely that the attorney has the ability to influence the judges in this specialized court, but cautioned the attorney to be mindful of Rule 8.4 ("Misconduct"), under which it is professional misconduct for a lawyer to state or imply an ability to influence improperly a government agency or official.

Because the attorney indicated the clerk's duties are ministerial and the clerk does not have the ability to influence a judge on legal issues, the panel concluded that so long as the attorney and the law firm as a whole do not imply or state that they have the ability to improperly influence the judge, the attorney will not be in violation of Rule 8.4.

In practice

Under this opinion, a lawyer's marriage to a court clerk whose duties are ministerial does not, by itself, require precautionary measures or bar the lawyer and firm from continuing to appear before the judge to whom the clerk is assigned. The opinion holds the operative limit is Rule 8.4: the lawyer and firm must not state or imply an ability to improperly influence the judge.

Common questions

Q: Do I have to stop appearing before the judge my spouse clerks for?

A: Per the opinion, no; the panel found it unlikely the attorney can influence the judges and concluded there is no Rule 8.4 violation where the clerk's duties are ministerial and no improper influence is implied.

Q: What conduct would create a problem?

A: Per the opinion, stating or implying an ability to improperly influence the judge; Rule 8.4 makes that professional misconduct.

Q: Does the clerk's role matter to the analysis?

A: Per the opinion, yes; the panel relied on the attorney's statement that the clerk's duties are ministerial and the clerk cannot influence a judge on legal issues.

Background and rules framework

The opinion applies Rhode Island Rule 8.4 (misconduct), corresponding to Model Rule 8.4, and specifically the provision making it misconduct to state or imply an ability to influence improperly a government agency or official. The panel treated the ministerial nature of the clerk's duties and the absence of any implied improper influence as dispositive.

Citations and references

Rules of Professional Conduct:

• MR 8.4 (misconduct; stating or implying ability to influence improperly)
• RI RPC 8.4(e)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 90-29: A Wife's Ministerial Bankruptcy-Clerk Role Creates No Conflict
• RI EAP Op. 91-05: Inviting the Judiciary to Law Office Opening Ceremonies

Currency note

This opinion was issued in 1992 (Opinion 92-78, issued November 18, 1992), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 8.4 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which renumbered and amended Rule 8.4 (misconduct). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2092-78.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS ADVISORY PANEL
Opinion 92-78, Request #306
Issued November 18, 1992

An attorney seeks Panel advice with regard to the following situation. The attorney informs the Panel that the bulk of the attorney's practice concentrates in a particular area of law. In this regard, the attorney and the attorney's law firm continuously appear before every judge in a specialized court. Recently, the inquiring attorney married a court clerk who is assigned to a judge in that court. The attorney explains that the clerk's duties are ministerial in nature and include assisting the judge in obtaining files and setting trial dates. The attorney questions whether the attorney and the law firm must take precautionary measures when appearing before this judge in light of this situation.

The Panel believes that it is not likely that the attorney has the ability to influence the Judges in this specialized court. However, the Panel cautions the attorney to be mindful of Rule 8.4 entitled "Misconduct." The Rule states that:

It is professional misconduct for a lawyer to:

(e) state or imply an ability to influence improperly a government agency or official ....

In this situation, the attorney has indicated that the clerk's duties are ministerial and that the clerk does not have the ability to influence a judge on legal issues. In addition, as long as the attorney and the law firm as a whole do not imply or state that they have the ability to improperly influence the judge, then the Panel believes that the attorney will not be in violation of Rule 8.4.