Opinion 15-09

January 29, 2015

Digest:         A part-time City Court judge may concurrently serve in the non-supervisory position of full-time deputy county attorney, provided he/she is not required to perform quasi-prosecutorial duties, such as handling juvenile delinquency and persons-in-need-of-supervision cases.

Rules:          Family Court Act § 812(2)(b), (c); §1013 (a), (b); Judiciary Law § 471; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); 100.6(B)(2)-(4); Opinions 10-173; 10-105; 06-98; 04-137; 98-92 (Vol. XVII); 93-111 (Vol. XI); 91-144 (Vol. VIII).

Opinion:

         The inquiring full-time deputy county attorney asks if he/she may retain this position while also serving as a part-time City Court judge.¹ The inquirer’s responsibilities as a deputy county attorney include:

a. “General municipal work including drafting, responding and negotiating contracts” on behalf of the county;

b. Advising the county legislature and administration with legal issues as they arise;

c. Handling juvenile delinquency and person-in-need-of-supervision matters under Family Court Act articles 3 and 7;

d. Representing “petitioners in Family Offense matters” in Family Court under Family Court Act article 8;²

e. Handling administrative proceedings before the County Court involving pistol permits; and

f. “Handling abuse and neglect proceedings and support petitions in Family Court” in Family Court, under Family Court Act articles 4, 6, and 10.³

The inquirer further states that attorneys from the County Attorney’s office “rarely, if ever, appear in City Court,” and that his/her own duties as a deputy county attorney “would not take me before any other judge in [the] surrounding local courts who are or would be entitled to practice law.” The inquirer has explained that he/she has no supervisory responsibilities as a deputy county attorney, but is merely one of several deputies under the County Attorney in a relatively small office.⁴ Finally, the inquirer states that, if certain of his/her current responsibilities are incompatible with judicial office, it may be possible to shift those responsibilities to other attorneys in the office.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A part-time judge may, subject to certain limitations, engage in the practice of law (see 22 NYCRR 100.6[B][2]-[3]; Judiciary Law § 471) and may accept “public employment in a federal, state or municipal department or agency, provided that such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties” (22 NYCRR 100.6[B][4]).

         The Committee has previously advised that a town justice who is permitted to practice law may serve as a full-time or part-time county attorney or assistant county attorney, provided such position does not involve quasi-prosecutorial duties (see Opinions 10-105; 06-98), and further provided that the judge does not need to disqualify him/herself too frequently (see Opinions 10-105; 91-144 [Vol. VIII]).⁵ The Committee therefore sees no impropriety in a part-time judge performing general legal work for the county, such as drafting and negotiating contracts (cf. Opinion 93-111 [Vol. XI] [a part-time city court judge may represent the city, in which he/she sits, in a contract matter]) or providing legal advice to the county legislature and administration as a member of the County Attorney’s office.

         Of particular relevance here, the Committee has advised that “while there is no per se incompatibility between the positions of assistant county attorney and town justice, there is a conflict if the responsibilities of the assistant county attorney position involve quasi-prosecutorial duties, such as handling juvenile delinquency and persons-in-need-of-supervision cases” (Opinion 06-98). Accordingly, the Committee advised “a judge should not be in the position of prosecuting such cases,” and, therefore, a part-time judge “should not serve as an assistant county attorney if such service would require him or her to be involved in such cases” (id.).

         Here, too, the Committee believes that the inquirer may hold the non-supervisory position of full-time deputy county attorney concurrently with a part-time City Court judgeship, provided that he/she is not required to perform quasi-prosecutorial duties, such as handling juvenile delinquency and persons-in-need-of-supervision cases.

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         ¹ A non-judge who is elected or appointed to the bench becomes subject to the Rules Governing Judicial Conduct as a judge on taking and filing his/her oath of office (see Opinions 04-137; 98-92 [Vol. XVII]).

         ² A family offense proceeding brought in Family Court “is a civil proceeding and is for the purpose of attempting to stop the violence, end the family disruption and obtain protection” (Family Court Act §812[2][b] [noting the availability of counseling services]), whereas a family offense proceeding “in the criminal courts is for the purpose of prosecution of the offender and can result in a criminal conviction of the offender” (Family Court Act §812[2][c]).

         ³ Family Court “has exclusive original jurisdiction over proceedings under this article alleging the abuse or neglect of a child” and “has jurisdiction over proceedings under this article notwithstanding the fact that a criminal court also has or may be exercising jurisdiction over the facts alleged in the petition or complaint” (Family Court Act §1013[a]-[b]).

         ⁴ The inquirer is thus serving in a role that, as described, appears to be the functional equivalent of an assistant county attorney, even though the inquirer uses the title of “deputy county attorney.”

         ⁵ As stated in Opinion 10-173, a part-time judge who serves as a county attorney or assistant county attorney “must disqualify him/herself when the county attorney’s office appears in the judge’s court, when the county is a party or is otherwise involved in a case before the judge or in any other circumstances that would create even an appearance of impropriety (see Opinion 91-144 [Vol. VIII]; see also 22 NYCRR 100.3[E][1]; 100.3[F]).”