Ethics Opinion

Opinion No. 76-5

May 1976

Summary: (1) A lawyer whose father has become clerk of a court in which the lawyer practices may represent a criminal defendant in a matter in which the clerk has earlier participated provided that he was not representing this client at the time of the clerk's participation; that the clerk was not then aware that his son, the lawyer, would subsequently undertake such representation; and that the clerk does not participate in the case after his son, the lawyer, has been retained by the client.

(2) Specifically, the lawyer is free in a domestic relations matter, to represent a woman who has obtained a complaint for non-support from the clerk prior to retaining the son as her lawyer.
(3) He may employ his stepmother as his bookkeeper-secretary, so long as he does not attempt through her to influence the clerk; she does not divulge to the lawyer any relevant private information she may receive from the clerk; and he takes reasonable care to prevent her from disclosing or using confidences or secrets of the client.

Facts: A lawyer left private practice in order to become the full-time clerk of a district court. His son, a lawyer who occasionally practices in that court, succeeds to the father's practice and continues to employ, as his bookkeeper-secretary, his stepmother (who occupied the same position when the father was in practice). Whenever the son appears before the district court, the father does not participate as clerk; an assistant clerk relieves him while the son is before the court. When the son has professional occasion to call the clerk's office, he does not speak to his father, but only to an assistant. In some criminal matters, after the clerk has issued a search or arrest warrant, the defendant retains the son as counsel; at the time of the proceedings before the clerk, the clerk did not know that the son would subsequently represent the defendant. On other occasions, a party in a domestic relations matter, after obtaining a complaint for non-support from the clerk, seeks to retain the son.
The son wishes to know if he may represent the criminal defendants; and if he may represent the domestic relations party.

Discussion: Nothing in the Code of Professional Responsibility explicitly deals with the problems here posed. Canon 9 proscribes "the appearance of professional impropriety," but none of the Disciplinary Rules or Ethical Considerations treat the question. The code enjoins a lawyer to "promote public confidence in our system and in the legal profession," EC 9-1. It requires him to "guard against otherwise proper conduct that has a tendency to diminish public confidence in the legal system or in the legal profession.... [and] when explicit ethical guidance does not exist, a lawyer should determine his own conduct by acting in a manner that promotes public confidence in the integrity and efficiency of the legal profession," EC 9-2. Thus the son's actions here need only to conform to a general, and necessarily vague, standard of propriety.
Nothing in the Code of Professional Responsibility pertains to a clerk, and the Canons of Judicial Ethics apply on their face only to the judiciary. But they are relevant here, for as Bacon said in his Essay on Judicature: "not only the Bench but the footpace and Precincts, and Purprise thereof, ought to be preserved without scandal and corruption."
Even if the Canons of Judicial Ethics covered a clerk, the actions of the clerk as described here would not violate Canons of Judicial Ethics, Canon 2B: "A judge should not allow his family, social, or other relationships to influence his judicial conduct or judgment."
(1) The sequence of events here is that the son is retained only after the clerk has participated in the criminal case; the clerk did not then know the son would be retained; and the father never acts as clerk in the case after the retainer. The clerk's action on matters with which, at the time they are before the clerk, the son is not connected, does not constitute "impropriety" nor even "the appearance of impropriety" which Canons of Judicial Ethics, Canon 2 proscribes. And, since by hypothesis, the father-clerk does not know of the son-lawyer's prospective entry into the case, his prior actions cannot possibly be subject to improper familial influence. Of course, under no circumstances may the lawyer-son in any way suggest to any person (client or otherwise) that he is able to influence either the clerk directly, or the court through the clerk in an improper manner, Code of Professional Responsibility, DR 9-101(C).
(2) The same considerations would allow the son to represent a party in a civil or criminal domestic relations matter, in which the clerk had earlier issued a complaint for non-support, subject to the same provisos as in (1) above.
(3) So long as the lawyer takes "reasonable care" to prevent his stepmother from disclosing or using any confidences or secrets of any client, DR 4-101(D), the mere fact of her relationship to the clerk does not preclude her employment by the son. Although the cases are distinguishable, we believe the controlling principle here to be similar to that which permits lawyer spouses to function, respectively, as an assistant district attorney and an assistant public defender, New York State Bar Journal, Opinion 409, pp. 621-622 (November, 1975). That is, the fact of a marital relationship between two professionals does not, of itself, warrant an inference that they are unable to separate their professional lives from their marriage. Of course the son must not attempt, through his stepmother's relation with the clerk, to influence the court, nor is she free to discuss with the son any relevant private information which she may receive from her husband, the clerk.

Permission to publish granted by the Board of Delegates, 1976. As stated in the Rules of the Cornmittee on Professional Ethics, this advice is that of a committee without official governmental status.