Klingaman v. Bartlett

OPINION OF THE COURT James Gibson, J. In this article 78 proceeding, the petitioner, who is the deputy chief clerk of the Court of Claims, seeks judgment annulling, insofar as applicable to him, rule 25.44 of the Rules of the Administrative Board of the Judicial Conference (22 NYCRR 25.44) which closely restricts the right of any lawyer who is employed full time in any court or agency of the unified court system to engage in private law practice. The petition must be dismissed, for the reasons set forth in the memorandum decision in Matter of Goldstein v Bartlett (92 Misc 2d 262). An additional ground urged in this proceeding [272] —that the rule unlawfully extends and expands the provisions of section 250 of the Judiciary Law prohibiting the clerk, deputy clerk or special deputy clerk of a court from practicing in that court — is equally tenuous. The section cited, doing no more than to prohibit one certain act, is not offended by a rule providing additional inhibitions. The rights to practice, as generally existing in 1909, were not conferred by section 250, so as to be impinged upon by rule 25.44; but in any event, the provisions of the Constitution and of the Judiciary Law subsequently enacted (NY Const, art VI, § 28; Judiciary Law, § 212) delegated rule-making power in this area to the Administrative Board. Thus, if section 250 were to be construed as implicitly conferring any rights on court clerks, it was to that extent vitiated by the later constitutional and statutory provisions and by the rule adopted in conformity therewith.