Continuing employment as assistant clerk if clerk becomes a candidate for register of probate in different court department in another county.

December 7, 2000

Opinion 2000-8


This is in response to your letter of November 2, 2000 in which you request an opinion on your continuing employment as an assistant clerk if you become a candidate for the position of Register of Probate. You are currently an assistant clerk in the Court. The elected position you intend to pursue is in a different court department and a different county.

As we have recently stated in Opinion Nos. 2000-2 and 2000-3 , we view the role of this Committee as limited to providing advice on the implications that the Code of Professional Responsibility would have on your candidacy. In this regard, we restate the advice we have given on prior occasions .

"We draw your attention to the following provisions of the Code. Under Canon 3 a Clerk-Magistrate is required to devote the entire time during normal court hours to the duties of the office. Canon 4 requires a Clerk-Magistrate to perform the duties of the office impartially and in a manner 'that promotes public confidence in the integrity and impartiality of the judicial branch.' In addition to being impartial, a Clerk-Magistrate must also convey the appearance of impartiality. (See Canon 4(A).) Also, Canon 5(A) prohibits a Clerk-Magistrate from engaging 'in activities which might detract from the dignity of the office of Clerk-Magistrate or interfere with the performance of the duties of the office.'" Opinion 95-5 .

In Opinion Nos. 2000-2 and 2000-3 we further stated our opinion that inquiries regarding the need for any leave of absence are within the domain of the Chief Justice for Administration and Management. 

"Decisions as to the need for a leave of absence seem to us to be management decisions beyond the mandate of this Committee, depending in part on factors relating to the office of the prospective candidate, the office where the position is in contest, and the nature of the campaign. For purposes of compliance with the Code, your adherence to the advice set forth above would be sufficient."