Opinion 07-21

February 22, 2007

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:          Where a court attorney for the City Courts in one county is also a town justice in another judicial district, it is ethically permissible for a City Court judge to appoint the court attorney’s co-justice to represent indigent clients in City Court, assuming such appointments are otherwise authorized under the Rules of the appropriate Appellate Division and governing law.

Rules:          22 NYCRR 100.3(C)(3); 101.3(a); 822.1(b); Opinions 02-130; 99-139 (Vol. XVIII); 99-91 (Vol. XVIII); 98-43 (Vol. XVI); 96-149 (Vol. XV); 91-18 (Vol. VII); Judiciary Law §35; County Law art. 18-B, §722.

Opinion:

         A court attorney who serves in the City Courts of one county has been appointed as a part-time town justice of a town in a neighboring county in a different judicial district and appellate division. The court attorney’s co-justice from the Town Court represents certain defendants as an 18-B assigned counsel in one of the City Courts where the court attorney serves. County Law art. 18-B. A judge of that City Court asks whether the court attorney’s co-justice may continue to appear as 18-B counsel in his/her city court.

         It is permissible for the City Court judge to continue to appoint and allow the court attorney’s co-justice to represent clients in the City Court, as long as such appointments are based upon merit and otherwise permissible. 22 NYCRR 100.3(C)(3); Opinion 91-18 (Vol. VII). The fact that the court attorney and the 18-B attorney are now co-justices in a town in a neighboring judicial district does not affect the latter’s capacity to appear in or accept appointments from the City Court.

         However, the City Court judge should disclose the circumstances whenever the court attorney’s co-justice appears and should insulate the court attorney from involvement in any matters involving the co-justice. Opinions 99-139 (Vol. XVIII); 99-91 (Vol. XVIII); 98-43 (Vol. XVI).

         The City Court judge should also consult the Rules of the appropriate Appellate Division for further guidance on whether a particular appointment is appropriate. In particular, Section 822.1(b) 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(b); Opinions 02-130; 96-149 (Vol. XV). This Committee does not have the authority to determine to what extent, if any, this rule applies to the circumstances presented here. 22 NYCRR 101.3(a); Opinions 02-130; 96-149 (Vol. XV).