Opinion 12-175

December 13, 2012

Digest:         An individual who is a part-time judge and has a co-judge may not also serve in the same court as a part-time court attorney.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(A); 100.6(B)(4); Opinions 11-92; 03-22; 98-113 (Vol. XVII).

Opinion:

         The inquirer asks whether he/she may serve simultaneously as a part-time judge and a part-time court attorney in the same court. The inquirer states that two judges preside in that court, and suggests their duties could be divided so that one judge would handle civil, and the other criminal matters.

         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]). Indeed, a judge’s judicial duties take precedence over all of the judge’s other activities (see 22 NYCRR 100.3[A]). A part-time judge may nonetheless accept 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 judge in a two-judge court may not also serve as that court’s clerk because the positions are ethically incompatible (see Opinions 03-22; 98-113 [Vol. XVII]; see also Opinion 11-92 n.2 [reaffirming this view]).

         The positions here are likewise ethically incompatible, because the inquirer would be simultaneously his/her co-judge’s peer in his/her capacity as a judge; and his/her co-judge’s subordinate in his/her capacity as a court attorney (see generally Opinions 03-22; 98-113 [Vol. XVII]; cf. 22 NYCRR 100.3[A] [judicial duties take precedence over all other activities of a judge]). The Committee therefore concludes that it is impermissible for an individual to serve as a part-time judge while also serving as a part-time court attorney in the same court which has a co-judge (see generally 22 NYCRR 100.6[B][4]).

         The inquirer’s proposed allocation of the workload between the two judges does not address the underlying incompatibility of the offices, and it therefore does not change the result.