Opinion 08-22

January 31, 2008

Digest:         Where the annual average number of cases a public defender’s office has handled in a town justice court is fewer than five, and the Coordinator of Indigent Defense will assign all future cases involving indigent defendants in the town justice’s court to the conflict defender or assigned counsel, the town justice may continue to work full-time as a legal secretary in the public defender’s office.

Rules:          22 NYCRR 100.2(A); 100.3(A); 100.3(E)(1); 100.4(A); 100.6(B)(4); Opinions 07-01; 03-118; 01-87 (Vol. XX); 99-80 (Vol. XVIII); 98-55 (Vol. XVI); 97-107 (Vol. XVI); 95-81 (Vol. XIII); 91-149 (Vol. VIII); 90-143 (Vol. VI); 1987 Ops Atty Gen No. 87-43.

Opinion:

         A newly elected town justice asks if he/she may continue to work full-time as a legal secretary in the public defender’s office for his/her county. The town justice advises that the public defender, along with a conflict defender and other assigned counsel, provides indigent defense services for the county in which the town justice presides. The inquiring town justice states that over the past eight years the average number of cases in which the public defender’s office represented a defendant in the town justice court where he/she presides has been fewer than five annually. Moreover, according to the town justice, the Coordinator of Indigent Defense will not assign any cases involving indigent defendants in the town justice’s court to the public defender. Instead, the Coordinator will assign such cases to the conflict defender or assigned counsel to ensure that the town justice while acting in his/her capacity as secretary in the public defender’s office will be completely insulated from cases involving defendants before his/her court who receive indigent defense services.

         The judicial duties of a judge must take precedence over all the judge’s activities (see 22 NYCRR 100.3[A]). A judge thus must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary and must recuse him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.2[A]; 100.3[E][1]). A part-time judge may nonetheless accept public employment in a municipal 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 (see 22 NYCRR 100.6[B][4]; see also 22 NYCRR 100.4[A]).

         In addition to adhering to these general principles, particular caution is needed when the non-judicial employment may appear to align the judge with law enforcement or defense functions. This Committee therefore has advised that a part-time judge may be employed in a non-lawyer civilian capacity in the New York State Police or in a County Sheriff’s Department, provided that he/she disqualifies him/herself in all cases in which his/her non-judicial employer is involved in any manner (see Opinions 03-118; 91-149 [Vol. VIII]). However, if the need for disqualification becomes so frequent that it interferes with the proper performance of the judge’s judicial duties, he/she cannot continue in both positions (id.). For instance, where the justice court calendar consists “almost entirely” of traffic cases and criminal complaints filed by New York State troopers, the justice should not accept employment as a secretary in the New York State Police Internal Affairs Bureau (see Opinion 07-01).

         Ordinarily, a town justice court would have a substantial caseload from the county public defender’s office, and therefore it would be difficult, if not impossible, to avoid a conflict unless the town is in a different county (compare Opinions 98-55 [Vol. XVI] [part-time lawyer-judge may not serve as public defender in the same county]; 97-107 [Vol. XVI] [town justice’s clerk may not maintain part-time employment at the public defender’s private law office, where the public defender and his/her staff “continually appear in the Town Court”] and Opinions 01-87 [Vol. XX] [subject to certain limitations, part-time judge may serve as investigator for public defender’s office in a different county]; 95-81 [Vol. XIII] [part-time judge may serve as public defender in a different county]).

         In the unusual circumstances presented here, however, the public defender’s office has, in the past, represented defendants in the town justice’s court extremely infrequently (averaging 5 cases annually) and the Coordinator of Indigent Defense has agreed to assign future cases to a different indigent defense services provider to ensure that any such cases will be handled by a different agency (cf. 99-80 [Vol. XVIII] [part-time judge may serve as private investigator for attorneys who handle cases for the public defender’s office in other courts in the same county, subject to certain limitations]; 90-143 [Vol. VI] [part-time judge may serve as public defender in his/her own county, before a full-time judge or a part-time lay judge, subject to certain limitations]). Consequently, the Committee believes that the proposed method of insulation is feasible for this very small number of cases, and it would protect the justice from any ex parte contact with defendants, attorneys, witnesses, evidence, or papers relating to any matter that may come before his/her court. This insulation appears to obviate the risk of a public perception that the justice would be unduly influenced in the performance of judicial duties by his/her supervisors in the public defender’s office or by recommendations made by those supervisors in cases that come before his/her court. However, it will ultimately be the justice’s responsibility to ensure that he/she will not work as a public defender secretary on any matters that might fall within the jurisdiction of his/her court and to recuse if any attorneys from the public defender’s office appear before him/her (see Opinion 99-80 [Vol. XVIII]).

          We are mindful that The New York State Attorney General has previously concluded that the same person may not simultaneously hold the positions of town justice and secretary to the public defender (see 1987 Ops Atty Gen No. 87-43). In that case, the Attorney General advised that “recusal is not an available remedy . . . under these circumstances because conflicts are likely, necessitating repeated recusals” (id.). While this Committee reaches no legal conclusion in this regard, we stress that the Attorney General’s concern appears inapplicable to the present inquiry, as the need for frequent recusals will not arise. As a result, it is the Committee’s opinion that, under these particular and unique circumstances, there is no ethical impropriety in the stated dual employment.