October 12, 1983
A lawyer working as a part-time clerk for a circuit court judge should not work in any capacity as a private counsel on any cases pending in the same court.
The clerk should not accept part-time private employment without full disclosure to the client of clerk's inability to appear in circuit court, and without the acceptance of the client of that limitation.
A lawyer is working as a part-time law clerk, as an independent contractor, for a county circuit judge. The lawyer asks whether he/she may concurrently accept private employment doing research only for a trial scheduled before another judge on the same circuit bench. Other attorneys involved in the trial have no cases pending before the judge for whom the lawyer is clerking and the lawyer has no other dealings with the circuit judge hearing the case.
The lawyer is also interested in doing other work, including probate and criminal cases, and asks whether he/she is free to do legal work in the county. If so, what restrictions should be placed on that work: e.g., is it necessary to ensure that the attorneys and firms proposing work have no cases pending before the judge for whom the lawyer clerks? Can the lawyer continue to do other research for attorneys? Can the lawyer appear in the district or probate court?
In Op 164 this Committee held that partners or employees of a judicial officer may not practice law in the court of which the judicial office holder is a member. The Opinion states:
"[We are] unable to comprehend a situation in which a judge of a court, engaging in the practice of law in that court either personally or through the agency of a law partner or employee, would not invite irresistible public suspicion that the functions of the court were subject to improper influences." Emphasis added.
It would be improper for the lawyer to work on cases pending in that court while also an employee of that court. Informal Opinion 2340***, where the Committee found it improper for an attorney associated in the same law office with a municipal judge to represent clients in matters before the municipal court, whether or not the attorney and judge are partners.
In contrast, the lawyer is not absolutely precluded from engaging in all other legal work while acting as a law clerk. However, it would be necessary for the lawyer to consider carefully the likelihood that in the future a client's interests might be prejudiced because of the lawyer's inability to appear in circuit court due to employment there. The lawyer would be required to withdraw from employment if and when that employment would cause involvement in a case pending in the circuit court while still working as a clerk for a judge of that court. Full disclosure to and consent from the client is advisable when a lawyer is unable to represent the client in circuit court due to such employment.
The lawyer must independently consider likelihood that withdrawal would be necessary even if the client consents to the terms of representation. The lawyer should not accept employment even with full disclosure and client consent if there is a significant possibility that the lawyer in future might be required to withdraw from representation of the client.
In conclusion, the lawyer should not be involved as a private practitioner with any case pending in the circuit court as long as the lawyer is employed by that court. Propriety of accepting matters not so pending depends on facts and circumstances in each instance.
We trust this informal opinion will provide guidance to the lawyer and we thank the lawyer for your inquiry. Although this is the opinion of the undersigned, copies have been circulated to other members of the Committee prior to it being released to the lawyer.