Opinion 08-108

June 6, 2008

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         (1) A part-time City Court judge may accept employment with the Conflict Office for the same county where the City Court in which he/she presides is located to handle custody and visitation matters in Family Court, but should disqualify him/herself if another attorney from the Conflict Office appears before him/her in City Court, and may not practice before a co-judge from the City Court who is appointed temporarily to preside in the Family Court. (2) A judge is disqualified, subject to remittal, from presiding when partners from his/her sibling’s law firm appear.

Rules:       22 NYCRR 100.3(A); 100.6(B)(2); 100.6(B)(4); 100.3(E)(1); Joint Opinion 07-114/07-120; Opinions 06-111; 06-98; 06-64; 90-143 (Vol. VI).

Opinion:

         A part-time City Court judge asks if he/she may accept part-time employment as an attorney in the Conflict Office for the same county where the City Court in which he/she presides is located. The judge advises that he/she would work only in Family Court, and handle only custody and visitation matters. The judge further advises that as a City Court Judge he/she presides over “ . . . primarily all non-criminal matters (civil, small claims, summary proceedings, housing, traffic).”

         The judicial duties of a judge take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]). Nevertheless, a part-time judge may “accept . . . public employment in a . . . state . . . 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 addition, a part-time judge who is a lawyer may practice law, though not in the court in which the judge presides, nor in any other court in the county in which the judge’s court is located, before a judge who also is permitted to practice law (see 22 NYCRR 100.6[B][2]). Nor may a part-time judge who is a lawyer act as such in a proceeding in which he/she has served as a judge or in any other proceeding related thereto (see id.).

         In the Committee’s view, the inquirer’s proposed outside employment is appropriate under the above-cited Rules. As the inquirer will appear in Family Court, but presides in City Court, he/she will not appear in the court in which he/she presides (see 22 NYCRR 100.6[B][2]). Also, as he/she will represent parties involved in custody and visitation matters in Family Court, and primarily presides in non-criminal matters in City Court, it appears unlikely that his/her practice of law in Family Court will conflict or interfere with the proper performance of his/her judicial duties (see 22 NYCRR 100.6[B][4]; Opinion 06-98; 06-64; 90-143 [Vol. VI]). The inquirer should disqualify him/herself, however, should another attorney from the Conflict Office appear before him/her in City Court (see 22 NYCRR 100.3[E][1]; Opinion 90-143 [Vol. VI]).

         Moreover, should any of the inquirer’s co-judges from City Court be temporarily assigned to Family Court, he/she may not appear before them as an attorney. A part-time judge is prohibited from practicing law in the court on which the judge serves (see Judiciary Law §16; 22 NYCRR 100.6[B][2]). In the Committee’s view, this rule is intended to preclude a judge who is permitted to practice law from doing so before his/her co-judges. The fact that the inquirer’s co-judge is appearing temporarily in a different court does not obviate the prohibition.

         The judge also asks if he/she may preside in City Court when one of his/her sibling’s law partners appears on a case. The Committee has previously advised that a judge should disqualify him/herself from matters in which other lawyers from his/her sibling’s law firm appear as counsel (see Joint Opinion 07-114/07-120; Opinion 06-111). The disqualification is subject to remittal, unless a litigant is self-represented.