127 N.J.L.J. 886
April 4, 1991
Limitations on Private Practice of Law
by Attorneys Serving as County Clerks
Inquirers, attorneys who are also county clerks, have asked
whether they are precluded by R. 1:15-2 or otherwise from
maintaining a private office practice limited to matters which do
not involve appearances in or the filing of documents with any
Under R. 1:15-2, an attorney who is a clerk or deputy clerk of any court is barred from "practice in any court." This prohibition applies to county clerks by virtue of their designation as deputy clerks of the Superior Court. R. 1:34-2.
The rule is silent on the subject of office practice, and the Committee does not believe that it can be extended by implication beyond its facial import. Nothing has been found in the history of the rule to support an interpretation which totally prohibits the practice of law by county clerks, and it is probable that so basic a restriction would have been stated expressly had that been the drafters' intention. Compare R. 1:15-l(a), providing that full time judges "shall not practice law" and (c), stipulating that surrogates and deputy surrogates shall not practice trust or estate law "in or out of court." Thus we conclude that any restrictions on office practice by county clerks are to be found not in R. 1:15-2, but in the application of familiar ethical standards governing the professional conduct of all attorneys.
In this aspect, we find no ethical problems per se in the maintenance of a private office practice by an attorney who is also a county clerk. Concerns arise, however, when such attorney has dealings with his or her own public office on behalf of private clients. Because the record-keeping functions of the county clerk's office are ubiquitous and largely ministerial, not all such dealings need be regarded as improper. But when an attorney's status as county clerk could reasonably appear to give his or her clients an advantage or preference over others similarly situated, the attorney should refrain from those areas of practice.
In particular, a county clerk as private attorney should not handle matters which involve the filing of instruments with his or her own public office to perfect the rights of a client against others, as where the first to record a deed or mortgage thereby gains priority over later claimants. Disputes over priority could readily engender charges of conflict of interest and/or the appearance of impropriety.
Nor should a county clerk as attorney conduct a practice which features frequent and regular applications to his or her own county clerk's office as a procedural step in obtaining for the client the object of the representation, for example, passport applications. Here, a not unreasonable expectation that the client will be afforded superior service and priority attention because of the attorney's status could well give rise to the appearance of impropriety.
Finally, a county clerk as attorney should refrain from any other dealings with his or her own public office which could reasonably be expected to engender the appearance of impropriety. To the extent that this catch-all stricture will involve a case by case evaluation of what is proper, the attorney should not test the outer limits but should err on the side of propriety. See Opinion 354, 99 N.J.L.J. 977 (1976); Opinion 106, 90 N.J.L.J. 497 (1967).
Subject to the above restrictions, we have determined that it is not improper for an attorney who is also a county clerk to conduct a private office practice.