Opinion 08-209

January 29, 2009

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:         A judge is not required by the Rules Governing Judicial Conduct to report his/her own violation of the Rules.

Rules:          County Law §722; 22 NYCRR 100.2; 100.2(A); 100.3(D)(1); 100.6 (B)(2); 822.1(b); Opinion 03-121.

Opinion:

         A part-time judge who is permitted to practice law presides in one county and maintains his/her law office in a different county. Although permitted by the Rules Governing Judicial Conduct to do so, the judge advises that he/she does not represent criminal defendants in any court in the county where his/her court is located in which a non-lawyer judge presides (see 22 NYCRR 100.6[B][2]). However, until recently, the judge did accept assignments pursuant to County Law §722 to represent indigent criminal defendants in courts located outside the county where he/she presides. Because both the county where the judge presides and the county where he/she practices law are located within the Appellate Division, Third Department, the judge is subject to the Rules promulgated by such court concerning the assignment of counsel pursuant to County Law §722. Upon learning that the Rules of the Appellate Division, Third Department render lawyers who hold the office of judge or justice of a city, town or village court in the Third Department ineligible for appointment pursuant to County Law §722 to represent indigent criminal defendants (see 22 NYCRR 822.1[b]), the judge has waived payment of any outstanding fees he/she has earned as the result of such appointments and has notified the appropriate authorities that he/she will no longer accept such appointments. The judge asks whether he/she must inform any disciplinary authority that he/she violated the Third Department rule.

         A judge must avoid impropriety and even the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2). In addition, a judge must respect and comply with the law and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A judge who receives information indicating a substantial likelihood that another judge has committed a substantial violation of the Rules Governing Judicial Conduct must take appropriate action (see 22 NYCRR 100.3[D][1]).

         In response to a similar inquiry, the Committee advised that, as 22 NYCRR 100.3 (D)(1) requires a judge to take appropriate action when he/she learns of misconduct by another judge (emphasis added), it does not require a judge to report his/her own misconduct (see Opinion 03-121). Therefore, the judge in the present inquiry is not required by such Rules to report his/her own misconduct. Further, in the Committee’s view, a judge who unknowingly and therefore inadvertently accepts 18b assignments for which he/she is ineligible does not commit a substantial violation of the Rules Governing Judicial Conduct which would require the judge to take further action.