Opinion 10-173

December 9, 2010

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         A part-time town justice who is permitted to practice law may represent a county in an action regarding conditions at the county’s detention facilities when the town justice presides in a town located in the same county.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); 100.4(D)(1)(a)-(C); 100.4(G); 100.6(B)(1), (4); Opinions 10-105; 07-73; 07-47; 06-98; 98-117 (Vol. XVII); 93-111 (Vol. XI); 91-144 (Vol. VIII).

Opinion:

A part-time town justice who is also a practicing attorney, asks whether he/she may represent a county in a dispute with a state agency regarding conditions at the county’s detention facilities. The court where the judge presides is located in the same county. The Committee assumes, for the purpose of this inquiry, that when the judge sentences criminal defendants to incarceration, they are typically incarcerated in the same detention facilities involved in the lawsuit.

A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). All judges are prohibited from engaging in financial and business dealings that may reasonably be perceived to exploit their judicial positions; that involve them with any business, organization or activity that ordinarily will come before them; or that involve them in frequent transactions or continuing business relationships with lawyers or other persons likely to come before the courts on which they serve (see 22 NYCRR 100.4[D][1][a]-[c]). Nevertheless, a part-time judge is not subject to the Section 100.4(G) prohibition on practicing law (see 22 NYCRR 100.6[B][1]) 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 (see 22 NYCRR 100.6[B][4]).

The Committee has previously advised that a town justice who is permitted to practice law may provide legal representation to his/her county as the county attorney or an assistant county attorney, provided that such position does not involve quasi-prosecutorial duties (see Opinions 10-105; 06-98) and further provided that the judge does not need to disqualify him/herself too frequently (see e.g. Opinions 10-105; 91-144 [Vol. VIII]). A judge in this situation must disqualify him/herself when the county attorney’s office appears in the judge’s court, when the county is a party or is otherwise involved in a case before the judge or in any other circumstances that would create even an appearance of impropriety (see Opinion 91-144 [Vol. VIII]; see also 22 NYCRR 100.3[E][1]; 100.3[F]). The Committee also advised that a part-time village justice may serve as the village’s defense counsel in a federal civil rights action, i.e., in a matter which would be heard “in a court with no connections to the village and on an issue with no connections to the justice court” (Opinion 98-117 [Vol. XVII]) and that a part-time city court judge may represent the city, in which he/she sits, in a contract matter (see Opinion 93-111 [Vol. XI]).

Here, the town justice would be acting as outside counsel to the county in a particular matter, in his/her capacity as a partner in a private law firm. Thus, the judge would not have any quasi-prosecutorial duties in his/her representation of the county (see Opinion 06-98). The judge would also be serving as an attorney for a different locality on issues that will not come before him/her as town justice (see Opinions 98-117 [Vol. XVII]). Thus, if serving as the county’s counsel will not interfere with the proper performance of the judge’s duties, he/she may accept the proposed employment, even if the litigation proves controversial (see Opinion 07-47).

Finally, the Committee does not believe that the judge’s presumed ability to sentence convicted criminal defendants to the county’s detention facilities that are the subject of the lawsuit creates an inherent conflict for the judge. However, if a criminal defendant appearing before the judge in the town court is called as a witness in the proceeding regarding the county’s detention facilities, the judge should disqualify him/herself from the defendant’s case (see 22 NYCRR 100.3[E][1]). Such disqualification is subject to remittal, as set forth in the Rules Governing Judicial Conduct, as long as all parties are represented by counsel (see 22 NYCRR 100.3[F]; Opinion 07-73).