Opinion 07-194

January 31, 2008

NOTE: This opinion has been modified to the extent inconsistent with Opinion 16-162. See footnote 2 of Opinion 16-162 for details.

Digest:         It is ethically permissible for a county court judge’s court attorney to serve as a part-time city court judge. The county judge must, however, insulate the court attorney from any city court case that is appealed to the county court, and must disclose such insulation on the record.

Rules:          CPL Article10; People v Moreno, 70 NY2d 403 (1987); 22 NYCRR 50.3(a); 100.6(B)(4); Opinions 07-78/07-121; 00-12; 99-133 (Vol. XVIII); 95-111 (Vol. XIII); 92-115 (Vol. X); 88-140 (Vol. III)

Opinion:

         A county court judge asks whether his/her full-time court attorney may serve as a part-time city court judge when both courts are located in the same county. If his/her court attorney may so serve, the judge further asks if he/she is disqualified from presiding in city court cases that are appealed to or otherwise come before the county court, and whether he/she must insulate the court attorney from any involvement in such cases.

         Pursuant to the Rules Governing Judicial Conduct, a part-time judge may also hold a position in public employment that is not incompatible with judicial office and does not interfere with the proper performance of judicial duties (see 22 NYCRR 100.6[B][4]). The Committee previously has advised that a county court judge’s full-time law clerk may serve as a town justice (see Opinion 99-133 [Vol. XVIII]) and that a part-time acting city court judge may serve as a part-time law clerk to a county court judge (see Opinion 92-115 [Vol. X]). The inquiring judge, therefore, may permit his/her court attorney to also serve as a part-time city court judge.

         While the county court judge is not disqualified from presiding in cases that are appealed or otherwise originate in the city court, he/she must insulate the court attorney from any city court case that is appealed to the county court (see Opinion 99-133 [Vol. XVIII]) and must disclose such insulation on the record (see Opinion 88-140 [Vol. III]). The Committee’s conclusions in Opinions 92-115 (Vol. X) and 95-111 (Vol. XIII) that a law clerk could participate in the appeal of a case decided by another city court judge are, therefore, modified accordingly.

         In certain cases (felonies, for example), the city court has preliminary jurisdiction while the county court has trial jurisdiction (see Criminal Procedure Law Article 10). In analogous circumstances, this Committee advised that there is no impropriety in a judge presiding in a case before one court and thereafter presiding in a related case in another court that involves the same party and related issues (see Joint Opinion 07-78/07-121). Such circumstance is similar to that of a criminal court judge who presides over a pre-trial hearing to determine the admissibility of evidence at trial and subsequently serves as the finder of fact at trial with full knowledge of the evidence previously deemed inadmissible (see People v. Moreno, 70 NY2d 403 [1987]). The judge in the present inquiry, therefore, need not insulate his/her court attorney from cases before the county court in which the city court exercised preliminary jurisdiction, even if the court attorney presided as the city court judge.

         While there is no ethical impropriety in a county court judge’s court attorney also serving as a part-time city court judge, he/she also should consult section 50.3 of the Chief Judge’s Rules, which requires employees of the Unified Court System to obtain written consent before engaging in dual employment in the Court System (see 22 NYCRR 50.3[a]; Opinion 00-12 [Vol. XVIII]).