Working nights and weekends to complete real estate closings after becoming Assistant Clerk

August 7, 2013

Opinion 2013-3

Dear  Mr.  :

This letter confirms advice you were provided on an emergency basis by the Secretary of the Advisory Committee on Ethical Opinions for Clerks of Courts. You state that you were recently hired as an Assistant Clerk Magistrate in the District Court Department and will be sworn in the near future. You state that a portion of your practice consists of real estate closings. You asked whether you can continue to work nights and weekends, i.e., outside of normal court hours, to complete real estate refinancing closings after you assume your duties as Assistant Clerk Magistrate.

As provided in the Committee's rule on emergency advice, the Secretary consulted with members of the Committee, including the Chairperson, and advised you via telephone on July 12, 2013 that the prohibition set forth in the final sentence of Canon 3 prohibits the practice of law at any time during one's employment as an Assistant Clerk Magistrate.

Canon 3 states:

"A Clerk Magistrate shall devote the entire time during normal court hours to the duties of his or her office, but may according to established procedures, participate during that time in law related educational and public service activities.  An elected Clerk Magistrate may participate during ordinary court hours in activities reasonably related to his or her duties as an Elected Clerk Magistrate.  A Clerk Magistrate shall not engage in the practice of law."

By this letter, the Committee confirms the advice you were given by the Secretary. There are no exceptions to the prohibition on the practice of law by persons serving as Assistant Clerk Magistrates. See Opinions 96-2 and 91-5 . The prohibition applies regardless of whether the work is performed outside of normal court hours. In Opinion 95-7 , the committee stated that the prohibition on the practice of law applies even while a Clerk was on a leave of absence.