Opinion 05-88

September 8, 2005

Digest:         A part-time town justice should not accept assignments to perfect criminal appeals from the county public defender’s office that provides criminal defense services for defendants in the town justice’s court, but may accept such assignments from the county assigned counsel conflict department so long as the town justice exercises recusal in any case that comes before the judge in which the defendant is represented by such department. A town justice may accept assignments from the appellate division to perfect criminal appeals from County or Family courts in counties other than the county in which the town justice holds office.

Rules:          22 NYCRR 100.2(A); 100.6(B)(2); 100.6(B)(4); Opinions 98-55 (Vol. XVI); 95-81 (Vol. XIII)

Opinion:

         A county public defender is experiencing a backlog of criminal appeals. A part-time town justice who is permitted to practice law previously served as chief appellate counsel for the county public defender’s office. The town justice asks if he/she may assist in resolving the backlog by accepting assignments from the county public defender’s office and the county assigned counsel conflict department to perfect criminal appeals from the county court, for the same county in which the town justice presides, to the appellate division or the Court of Appeals. The county public defender’s office and the county assigned counsel conflict department both serve the same county in which the town justice’s court is located, and the town justice indicates that the county public defender’s office provides criminal defense services for defendants in his/her court. The town justice also asks if it is ethically permissible to accept assignments from the appellate division to perfect appeals from County or Family courts in counties other than the county in which the town justice holds office.

         A judge must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. 22 NYCRR 100.2(A). A part-time judge may not practice law in his or her own court, but may practice law in any court in the county in which his or her court is located before a judge who is not permitted to practice law and in courts in other counties. See 22 NYCRR 100.6(B)(2). In addition, a part-time judge 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).

         In Opinions 98-55 (Vol. XVI) and 95-81 (Vol. XIII), the Committee advised that a part-time town justice may serve as a public defender, but only in a county other than the county where the judge presides. To do so in the same county where the judge presides would be “. . . incompatible with judicial office . . .” 22 NYCRR 100.6(B)(4). For the same reason, the town justice in the present inquiry should not accept assignments from the county public defender’s office that provides criminal defense services for defendants in the town justice’s court. The town justice may, however, accept such assignments from the county assigned counsel conflict department, but while doing so must exercise recusal in any case that comes before him/her in which the defendant is represented by such department. If, however, such recusals occur on a frequent basis, the town justice should refrain from accepting assignments from the county assigned counsel conflict department as well. Finally, it is ethically permissible for the town justice to accept assignments from the Appellate Division to perfect appeals from County or Family courts in counties other than the county in which the town justice holds office.