Opinion 09-102

January 27 - 28, 2010

Digest:         A part-time city court judge, who is elected to serve in one city court and is temporarily assigned to serve on an “as-needed” basis in another city court in the same county, may not appear before his/her co-judge from the other city court when that co-judge is serving as an acting Family Court judge in the same county while an order assigning him/her temporarily to the other city court is in effect.

Rules:          22 NYCRR 100.2; 100.2(A); 100.6(B)(1); 100.6(B)(2); Opinion 08-108

Opinion: 

         A part-time city court judge serves in two city courts in the same county. He/she was elected to serve in one court and is temporarily assigned to serve as an acting city court judge on an “as-needed” basis in the other city court (temporary court). The inquirer asks whether he/she may appear in Family Court before his/her co-judge from the temporary court when that co-judge is serving in Family Court as an acting family court judge.

         A judge must avoid impropriety and the appearance of impropriety in all of the judge’s 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]). A part-time lawyer judge is permitted to practice law (see 22 NYCRR 100.6[B][1]), but may not do so in the court on which the judge serves (see 22 NYCRR 100.6[B][2]).

         Although the inquiring judge would appear before his/her temporary court co-judge only when his/her temporary court co-judge is serving as an acting family court judge in Family Court, the inquiring judge’s temporary court co-judge may exercise jurisdiction in both courts concurrently. In a prior opinion involving a part-time city court judge who wanted to accept employment with a conflict office to handle custody and visitation matters in the Family Court in the same county where the City Court in which he/she presides is located, the Committee advised as follows (Opinion 08-108):

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 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.

         For the same reason, it is the Committee’s view that the judge in the present inquiry may not appear before his/her temporary court co-judge when that co-judge is serving temporarily in Family Court. The fact that the inquirer’s temporary assignment is on an “as needed” basis does not warrant a different result.

         However, the inquiring judge may appear before his/her temporary court co-judge when the co-judge is serving in the Family Court if there is no temporary assignment order in effect at the time the inquiring judge will appear.