Opinion 08-94

April 24, 2008

Digest:         Subject to certain limitations, a part-time judge may also work as a part-time research and writing specialist for a Federal Public Defender’s office.

Rules:       22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(E)(1); 100.3(F) 100.6(B)(4); Opinions 08-22; 01-87; 95-81 (Vol. XIII).

Opinion:

         A part-time judge asks whether he/she may serve as a judge and also work as a research and writing specialist for a Federal Public Defender’s office.

         A part-time judge may accept public employment in a federal department or agency, provided the 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]). Additionally, all judges must avoid impropriety and the appearance of impropriety in all their activities (see 22 NYCRR 100.2), and they 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]). Finally, a judge’s judicial duties must take precedence over all the judge’s activities (see 22 NYCRR 100.3[A]).

         In Opinion 01-87, the Committee advised that a part-time town judge may work as an investigator for a county Public Defender's office that is located in a county other than the county in which the judge presides, subject to certain limitations. First, the judge should not work on any matters in which his/her court could exercise jurisdiction. Second, the judge would be disqualified from presiding in any case in which the judge was involved as an investigator for the Public Defender’s office. Third, the judge would be disqualified from presiding when any attorney, from the Public Defender’s office for which the judge works as an investigator, appears in the judge’s court (see id.).

         Similarly, in Opinion 95-81 (Vol. XIII), the Committee advised that a newly appointed part-time town justice may serve as a public defender in a county other than the county where the judge presides, but would be disqualified from presiding in matters handled by other attorneys from the public defender’s office in which the judge serves.

         And, in Opinion 08-22, the Committee concluded that where very few, if any, cases involving the local public defender ever reached a town justice’s court and the Coordinator of Indigent Defense would assign future cases involving the town justice’s court to the conflict defender or assigned counsel, a town justice may continue to serve as a full-time legal secretary in the public defender’s office in the same county in which he/she is a town justice.

         As the judge in the present inquiry proposes to work for the Federal Public Defender, the risk of conflict or interference with the judge’s judicial duties is even more remote than in these earlier opinions. Because the Federal Public Defender represents defendants charged with violating federal statutes, those cases cannot be prosecuted in a town or village court. Thus, the inquiring town justice may also work as a part-time research and writing specialist for the Federal Public Defender.

         Nevertheless, the judge is ultimately responsible for ensuring that he/she does not work on any matters that might fall within his/her court’s jurisdiction (see id.). In addition, the judge would be disqualified from presiding in any matter in which an attorney from the Federal Public Defender’s office appears (see 22 NYCRR 100.3[E][1]). Such disqualification is, however, subject to remittal (see 22 NYCRR 100.3[F]). If a judge who is disqualified discloses the basis for the disqualification and the parties who have appeared and not defaulted and their lawyers, without the judge’s participation, all agree on the record that the judge should nevertheless preside, and the judge believes he/she will be impartial and is willing to participate, the judge may participate in the proceeding (see id.). Absent an agreement to remit the disqualification, the judge must exercise recusal.

         The judge also would be disqualified (subject to remittal, see 22 NYCRR 100.3[F]) in any other matter in which the judge’s impartiality might reasonably be questioned as a result of his/her employment with the Federal Public Defender (see 22 NYCRR 100.3[E][1]).