Opinion 09-178

September 10, 2009

Digest:         A part-time town justice should not also serve as administrator of the county’s assigned counsel program or conflict defender’s office.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(B)(6); 100.4(G); 100.6(B)(1), (4); 08-22; 05-88; 03-22; 98-55 (Vol. XVI); 96-92 (Vol. XIV); 96-35 (Vol. XIV).

Opinion:

         An attorney who is running unopposed for a part-time town justice position asks whether he/she may continue to serve as administrator of the assigned counsel program for the same county in which the town court is located once he/she assumes office. The inquirer advises that the program “is currently transitioning to a Public Defender’s office,” but that he/she would continue to serve as administrator for the conflicts office that will operate after the Public Defender’s office is established.

         The inquirer further advises that his/her current responsibilities, which will remain the same when he/she is the administrator of the conflicts office, include maintaining a list of qualified attorneys, taking applications from litigants to determine their financial eligibility, and assigning attorneys to defend indigent litigants in various criminal or family courts, including the court where the inquirer will preside. According to the inquirer, once a case is completed, the assigned attorney submits a voucher to the judge who presided in the case for his/her approval. The judge thereafter forwards the voucher to the administrator for his/her review and approval, who in turn forwards the voucher to the county treasurer for payment. The inquirer acknowledges that, “Once elected, as Town Judge and Administrator, I would in essence be wearing both hats in the approval process for vouchers.”

         A judge must avoid impropriety and the appearance of impropriety in all 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]). Therefore, a judge must not initiate, permit or consider ex parte communications or consider other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding except as otherwise permitted by the Rules Governing Judicial Conduct or by law (see 22 NYCRR 100.3[B][6]).

         A part-time judge is permitted to practice law, subject to certain limitations (see 22 NYCRR 100.6[B][1]; 100.4[G]), and “may accept private employment or public employment in a federal, state or 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” (22 NYCRR 100.6[B][4]). Nevertheless, the judicial duties of a judge take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]).

         The Committee previously has advised that the positions of town justice and court clerk for the same municipality are incompatible and inherently in conflict because the town justice must supervise the court clerk and is required to file certain documents with the court clerk, and the court clerk has separate duties with regard to recording proceedings and activities of the town justice (see Opinion 03-22). The Committee also has advised that the positions of part-time town judge and member of a village zoning or planning board are incompatible where there is no village court and the town judge hears violations of the village zoning law in the town court (see Opinion 96-35 [Vol. XIV]). And, in Opinion 96-92 (Vol. XIV), the Committee advised that the positions of part-time town justice and town clerk in the same municipality are incompatible because the non-lawyer town justice must file, pursuant to the Town Law, “a certificate of completion of a course of training prescribed by the administrative board of the judicial conference” with the town clerk. Also, the Town Law specifically prohibits the same person from holding more than one elective town office (see id.).

         In the Committee’s view, the two positions the inquirer would hold are likewise inherently incompatible. The judge advises that he/she takes applications from litigants to determine their financial eligibility and also reviews and approves vouchers that attorneys assigned to represent indigent defendants submit to obtain payment for their legal services. In both cases, the judge is likely to learn information about litigants who may appear in his/her court which poses the risk that the judge may receive ex parte communications or other communications outside the presence of parties or their lawyers that could concern cases that are pending or impending in the judge’s own court (see 22 NYCRR 100.3[B][6]). And, even if a case is pending or impending in another court, if an administrative judge needs to transfer such a case to the inquirer’s court, he/she could not do so if the inquirer learned facts about the case through his/her service as administrator either of the assigned counsel program or the conflicts office (see 22 NYCRR 100.3[A]). In addition, the inquirer cannot approve attorneys’ vouchers as both the presiding judge and as the assigned counsel or conflicts office administrator. To do so would defeat the purpose of the two-step voucher review process and could result in an appearance of impropriety (see 22 NYCRR 100.2).

         Finally, the Committee has previously advised that a judge must be cautious when his/her non-judicial employment may appear to align the judge with law enforcement or defense functions as such a position is more likely to interfere with the proper performance of judicial duties (see Opinions 08-22; 05-88; 98-55 [Vol. XVI]).