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Opinion 193

An opinion is requested concerning the ethical propriety of a law clerk for a Superior Court Judge organizing and operating a research-for-hire business. It is represented that no research would be performed during normal clerking hours and that no business would be accepted in the circuit in which the clerk is employed. Finally, the business would be purely research; the clerk would not represent clients in any court proceeding; and the name of the clerk would not appear on any court documents.

Rule 2.12 Code of Judicial Conduct provides in part:

Judges shall require their staffs … to observe the standards of fidelity and diligence that apply to the Judges and to refrain from manifesting bias or prejudice in the performance of their official duties.

Recognizing that prior opinions of the Commission have permitted a law clerk to apply for a part-time position of Assistant Magistrate in an adjacent county (No. 91) and to be appointed an Assistant Magistrate in the same judicial circuit in which the appointee serves as a law clerk (No. 157), the Commission is nevertheless concerned that the business operation described above is likely to lead to two distinct violations of the Code of Judicial Conduct.

Canon 1 requires Judges to avoid impropriety and the appearance of impropriety in all their activities, and Rule 1.3 demands that Judges not lend the prestige of judicial office to advance the private interests of others. Rule 2.4(C) demands Judges not convey or permit others to convey the impression that they are in a special position to influence them.

As noted in Commentary[1] to Canon 1 of the Code, the test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.

Measured by these standards, the potential for perceived abuse and possible preferential treatment in the factual situation here presented is apparent and gives rise to an impermissible appearance of impropriety, as well as a possible impression of a misuse of the judicial office to advance the private interests of another. Accordingly, the question posed must be answered in the negative.

[Pertinent Code of Judicial Conduct provisions: Canon 1, Rule 1.3, Rule 2.4, Rule 2.11, Rule 2.12. Cross reference to other relevant opinions for review: #61, #91, #116, #157, #184.]

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