Opinion 10-127

September 16, 2010

Digest:         A part-time judge may accept employment as a process server, but may provide such services only in matters that will not be heard in his/her court, either before the inquiring judge or his/her co-judge.

Rules:          22 NYCRR 100.2; 100.2(A); 100.6(B)(4); Opinion 99-80 (Vol. XVIII); 90-01 (Vol. V).

Opinion:

         A part-time judge asks whether it is ethically permissible for him/her to accept employment as a process server. The judge advises that he/she will only serve process in cases that are outside the jurisdiction of the court in which the judge presides.

         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 independence of the judiciary (see 22 NYCRR 100.2[A]). A part-time judge may accept private employment that 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]).

         In Opinion 90-01 (Vol. V), the Committee advised that a part-time judge may continue to serve as a private investigator provided that the judge does not conduct investigations in the town where he/she presides and that the judge recuses him/herself in matters in which he/she acted as an investigator. Similarly, in Opinion 99-80 (Vol. XVIII), the Committee advised that a part-time judge may be employed as a private investigator by attorneys in private practice who have been retained to handle cases for the county Public Defender, provided that the judge does not perform investigative services relating to any case within the jurisdiction of his/her court. In addition, the judge must disqualify him/herself in any matter that comes before him/her in which he/she had performed investigative services and in any matter in which an attorney for whom the judge is performing services or from whom the judge has recently solicited investigative work appears in the judge's court, and for a period of two years after the judge has ceased performing such services for that attorney.

         In the Committee’s view, the services of a private investigator and of a process server are similar in nature. Therefore, the inquiring judge may accept employment as a process server, but may not provide such services in any matters that will come before the inquiring judge or his/her co-judge.