Opinion 02-130

December 5, 2002

Please note that Part 822.1 of the Rules of the Appellate Division, Third Department (Assignment of Counsel) has been amended. Among other changes, Rule 822.1(b) no longer states that a judge or justice of a city, town or village court shall not be assigned to act as counsel pursuant to section 35 of the Judiciary Law or section 722 of the County Law. 22 NYCRR 822.1(b).

Digest:         It is not unethical for a part-time judge to receive appointments under section 722 of the County Law, but such appointments may be barred in the Third Department under section 822.1 of the Rules of the Appellate Division, Third Department.

Rule:            County Law 722; 22 NYCRR (Part 36); 100.6(B)(2); 822.1 Opinions 91-86 (Vol. VIII); 96-149 (Vol. XV).

Opinion:

         A part-time City Court judge asks whether he/she is precluded from accepting an appointment to represent an indigent party in either a Family Court case or a County Court criminal case.

         In Opinion 91-86 (Vol. VIII) the Committee determined that a part-time judge could receive appointments under section 18-B of the County Law. That is, pursuant to section 100.6(B)(2), of the Rules Governing Judicial Conduct, a part-time judge may not appear before another part-time lawyer judge in the same county. But County Court and Family Court judges, are full-time judges and thus the prohibition does not apply in those courts. Nor does the newly promulgated Part 36 of the Rules of the Chief Judge prohibit appointments of part-time judges pursuant to section 722 of the County Law. 22 NYCRR Part 36.

         However, we note that the inquirer is a judge in the Third Judicial Department. Section 822.1 of the Rules of the Appellate Division, Third Department, states that a judge or justice of a city, town or village court, “shall not be assigned to act as counsel pursuant to section 35 of the Judiciary Law or section 722 of the County Law,” subject to certain exceptions. 22 NYCRR 822.1. That specific provision was an issue in Opinion 96-149 (Vol. XV) in response to an inquiry from a part-time judge of the Third Department who was seeking advice as to possible ways to avoid the prohibition. The Committee was unable to provide such advice.

         In sum, the Rules Governing Judicial Conduct do not bar a part-time judge from receiving appointments in County Court and Family Court under section 722 of the County Law. Any such appointments in the Third Department are, however, subject to the provisions of section 822.1 of the Rules of the Appellate Division, Third Department. 22 NYCRR 822.1.