Opinion 11-73

June 16, 2011

Digest:         A part-time judge who practices law and previously presided over criminal charges against certain individuals arising from a particular incident, is prohibited from representing a different individual in a civil matter arising from the same incident.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(A); 100.6(B)(1); 100.6(B)(2).

Opinion:

         A part-time lawyer judge asks whether he/she may represent a retired law enforcement officer who anticipates being named a defendant in a federal civil rights claim. The complaint is based on an incident during which another law enforcement officer allegedly killed a person in the presence of the judge’s prospective client. The incident occurred within the jurisdiction of the judge’s court, and the judge states that he/she previously presided over criminal charges brought against other individuals involved in the same incident, beginning with their arraignments and ending with dismissal of the charges. The judge further states that a grand jury previously cleared the judge’s prospective client of any wrongdoing.

         A judge must always 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]). While a judge’s judicial duties take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]), a part-time lawyer judge is permitted to practice law (see 22 NYCRR 100.6[B][1]). However, he/she is prohibited from acting as a lawyer in a proceeding in which he/she has served as a judge or in any other proceeding related thereto (see 22 NYCRR 100.6[B][2]). Therefore, the inquiring judge is prohibited from representing the law enforcement officer in a federal civil rights claim that is related to the criminal matters in which the judge previously presided.