Opinion 03-49

June 12, 2003

Digest:         Pursuant to Part 36 of the Rules of the Chief Judge, a part-time judge is not eligible for the judicial appointments set forth in §36.1 of the Rules.

Rules:          NYS Constitution, Art. 6, §1(a); County Law Art. 18-B; 22 NYCRR 36.1(a)(3), 36.2(c)(1); 100.6(B); Opinion 91-86 (Vol. VIII).

Opinion:

         A part-time village justice who is permitted to practice law asks whether he/she is precluded from accepting certain judicial appointments pursuant to Part 36 of the Rules of the Chief Judge.

         Part-time judges who also are attorneys may engage in the practice of law in accordance with §100.6(b) of the Rules Governing Judicial Conduct. While attorneys who practice law may be appointed to such positions as guardians, guardians ad litem, referees, etc., a judge or housing judge of the Unified Court System of the State of New York is ineligible for such appointments. 22 NYCRR 36.2(c)(1). Although town and village courts are not funded by the State of New York, and the justices of these courts are not employees of the State of New York, town and village courts are part of the New York State Unified Court System [NY Constitution, Article 6, §1(a)]. Part-time attorney-judges who preside in these courts, therefore, may practice law in accordance with §100.6(B) of the Rules Governing Judicial Conduct, but are precluded from appointment to the positions governed by Part 36 of the Rules of the Chief Judge.

         Under Article 18-B of the County Law part-time lawyer-judges may serve as assigned counsel in criminal cases. Opinion 91-86 (Vol. VIII). Part 36 does not invalidate their eligibility for such appointments, however, since such appointments are not within the scope of Part 36; and further, the exception to the prohibitions set forth in Part 36 applies only to law guardian appointments that are not paid for from public funds. 22 NYCRR 36.1(a)(3).