Joint Opinion 07-195 and 07-203

December 6, 2007

Digest:         A part-time judge who is permitted to practice law and has been charged with a traffic infraction may appear and defend him/herself pro se before another part-time judge who presides in the same county who also is permitted to practice law.

Rules:          22 NYCRR 100.6(B)(2); Opinion 96-68 (Vol. XIV).

Opinion:

         A part-time judge who is permitted to practice law has been charged with a traffic infraction, and another part-time judge who also is permitted to practice law has been assigned to hear the matter. Both judges preside in the same county. The judge who has been charged with a traffic infraction asks if it is permissible for him/her to appear pro se to defend against the charge before the other judge. In a separate inquiry, the part-time judge assigned to hear the case asks if he/she may preside where the defendant, who also is a part-time judge permitted to practice law, appears pro se.

         Pursuant to the Rules Governing Judicial Conduct, a part-time judge shall not practice law “in any other court in the county in which his or her court is located, before a judge who is permitted to practice law. . .” 22 NYCRR 100.6(B)(2). In Opinion 96-68 (Vol. XIV), however, this Committee advised that, “ [t]here is no rule prohibiting a judge from asserting a cause of action in any court which has jurisdiction, and from thereafter appearing in that action as a litigant pro se or by counsel.” Although in this instance, the first part-time judge has not initiated the action, but is appearing as a defendant in a traffic case, the result is the same. Section 100.6(B)(2) does not preclude a judge, part time or otherwise, charged with a traffic infraction from appearing pro se before another part-time judge, nor the presiding judge from hearing and deciding the case. That both judges are lawyers who are permitted to practice law does not change this result.