2009-36 (December 23, 2009)
Court Employees; Disclosure/Disqualification; Canons 2 & 3

Issue: A Judicial Official, seeking clarification of JE 2009-20, has inquired whether he/she must restrict a Temporary Assistant Clerk (“TAC”), who performs purely administrative and non-discretionary duties from interacting with law firms to which the TAC has applied for a position. The Judicial Official notes that TACs often submit applications to numerous law firms without getting responses. The Judicial Official asks the following:

1) Must a TAC be restricted from recording dispositions and other orders in the Judicial Official's courtroom during a short calendar session with respect to cases in which a party is represented by a law firm to which the TAC applied for a position?

2) Must the TAC be restricted from communicating with such a law firm regarding scheduling issues, advising of notices, etc.?

3) Is there a distinction between a TAC who applies for a position and one who, at a minimum, has an interview?

4) If the TAC who has applied to a law firm is restricted by the Judicial Official from working on any cases involving the firm, how long does the ban last?

5) What guidance can be offered with respect to the meaning of “a reasonable period of time” as that phrase is used in opinion JE 2009-20?

Response: Based upon the facts presented, including that the duties of the TAC are purely administrative and non-discretionary, the participating Committee members unanimously concluded that the answers to the questions are as follows: (1) No, (2) No, (3) There is a distinction between a TAC who is an applicant and one who has been offered an interview. The TAC’s status as an applicant does not necessitate restriction of the TAC. However, upon becoming aware that a TAC has received or has been offered an interview or is otherwise engaged in active employment negotiations with a law firm or a lawyer who has a matter pending before the Judicial Official, the Judicial Official must exercise his or her discretion, in accordance with the obligations of Canons 2 and 3, to determine whether the TAC should be restricted from participating in any case involving the lawyer or law firm, whether disclosure on the record, or recusal is necessary or whether no action is required, (4) If the Judicial Official determines
that the TAC should be restricted, the restriction should be for a reasonable period of time, as determined by the Judicial Official based on the circumstances, and should terminate once a decision is made regarding the employment application of the TAC, and (5) Because the underlying facts in Opinion 2009-20 were different from those presented by the inquiring Judicial Official, in that they did not involve a staff member who was involved exclusively in administrative matters that did not involve the exercise of discretion, the Committee declined to address this issue.