Joint Opinion 08-58 and 08-66

April 24, 2008

Digest:         A non-lawyer, part-time town justice may appear in family court as an advocate for a not-for-profit organization’s client and may accept employment with a Court Appointed Special Advocate program to train and supervise program volunteers, but is disqualified from presiding over any matter involving the not-for-profit organization or special advocate program and in any matter heard in his/her court pursuant to Criminal Procedure Law §530.11(4), §530.12(3-a) or §530.12(3-b) that involves a client of the not-for profit organization or a member of the client’s family. The judge cannot continue to hold such positions, however, should the need for disqualification be so frequent as to interfere with the ability to perform his/her judicial duties.

Rules:       Criminal Procedure Law §§ 530.11(4) and 530.12(3-a),(3-b); 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(E)(1) 100.6(B)(4); Opinions 07-01; 05-73; 03-97; 01-47; 99-06 (Vol. XVII); 96-34 (Vol. XIV); 91-149 (Vol. VIII); 91-109 (Vol. VIII).

Opinion:

         A non-lawyer, part-time town justice is employed by a not-for-profit organization that works with high-risk youths to reduce their reliance on institutional care and offers support to their families and neighborhoods. The judge asks whether he/she can appear in family court as the organization’s advocate for a client it serves (08-58). The judge also asks whether he/she can accept employment with a Court Appointed Special Advocates program to train and supervise program volunteers who advocate for children in neglect and abuse proceedings in family court (08-66).

         Pursuant to the Rules Governing Judicial Conduct, a part-time judge may accept private employment that is not incompatible with judicial office and that does not interfere with the proper performance of the judge’s duties (see 22 NYCRR 100.6[B][4]). Nevertheless, all judges must avoid impropriety and the appearance of impropriety in all of their activities (see 22 NYCRR 100.2) 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]).

         The Committee previously has advised that a part-time judge may accept employment as a security officer at a community college (see Opinion 05-73); may work for a private business solely owned by a member of the Town Planning Board (see Opinion 99-06 [Vol. XVII]); may work as a caseworker for a County Child Protective Services (see Opinion 96-34 [Vol. XIV]); and may tutor a college student in legal writing (see Opinion 91-109 [Vol. VIII]). In each case, the Committee concluded that the proposed employment was not incompatible with judicial office and would not interfere with the judge’s ability to perform his/her judicial duties (see 22 NYCRR 100.6[B][4]; Opinion 05-73; Opinion 99-06 [Vol. XVII]; Opinion 96-34 [Vol. XIV]; Opinion 91-109 [Vol. VIII]).

         In contrast, a part-time judge may not accept employment as a town code enforcement officer (see Opinion 03-97); as a court aide for the County Sheriff’s Department (see Opinion 01-47); or as a secretary in the New York State Police Internal Affairs Bureau (see Opinion 07-01). In each case, the Committee concluded that the proposed employment would interfere with the judge’s ability to perform his/her judicial duties because the judge’s employment with a law enforcement agency would create an impermissible appearance of impropriety (see 22 NYCRR 100.6[B][4]; Opinion 03-97; Opinion 01-47; Opinion 07-01).

         In the Committee’s view, both positions proposed by the inquiring judge are permissible, as it does not appear, at least initially, that they will interfere with the performance of the judge’s judicial duties. The judge is, however, disqualified from presiding in any case involving either of his/her employers (see 22 NYCRR 100.3[E][1]). In addition, with respect to his/her employment with the not-for-profit organization, the inquiring judge is disqualified from presiding in any matter that comes before him/her pursuant to Criminal Procedure Law §530.11(4) and §530.12(3-a) or (3-b)

and that involves a client of the organization or a member of such client’s family.

         If, consequently, the occasions when the inquiring judge is disqualified from presiding are so frequent as to interfere with his/her ability to perform his/her judicial duties, then he/she cannot continue to serve in both capacities (see 22 NYCRR 100.3[A] [judicial duties take precedence over all the judge’s other activities]; Opinion 91-149 [Vol. VIII] [if dual employment requires too frequent disqualification, inquirer must resign from one or the other]).