Opinion 12-183

December 13, 2012

Digest:         A part-time lawyer/judge in a town, village, or city court may accept assignments from a full-time county court judge to represent prison inmates in their initial administrative appeals before the parole board.

Rules:          County Law Art. 18-B; Executive Law §§ 259-b(1),(2), (4); 259-i(3)(f)(v); 259-i(4)(b); Judiciary Law § 471; 9 NYCRR 8006.4(b),(d); 22 NYCRR 36.1; 22 NYCRR 100.2; 100.2(A); 100.6(B)(1)-(4); 22 NYCRR Part 1200, Rule 1.2(c); Opinions 12-77; Opinions 04-40; 03-49; 02-130; 99-97 (Vol. XVIII); 92-115 (Vol. X); 91-86 (Vol. VIII); Joint Opinion 10-73/10-100/10-167.

Opinion:

         The inquiring part-time lawyer/judge, who serves in a town, village, or city court, asks if he/she may accept assignments from a full-time county court judge to represent prison inmates in their initial administrative appeals before the parole board (see Executive Law §§ 259-i[4][b] [“Upon an appeal to the board, the inmate may be represented by an attorney. Where the inmate is financially unable to provide for his own attorney, upon request an attorney shall be assigned pursuant to the provisions of subparagraph (v) of paragraph (f) of subdivision three of this section.”]; 259-i[3][f][v] [“where such person is financially unable to retain counsel,” the court “shall assign counsel in accordance with the ... plan for representation placed in operation pursuant to article eighteen-B of the county law.”]). The judge states that his/her representation of such inmates would not extend beyond the administrative appeal,¹ even though an inmate whose appeal is denied is entitled to pursue an Article 78 proceeding.

         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]). A part-time judge may accept outside employment that is not incompatible with judicial office and does not conflict or interfere with the judge’s judicial duties (see 22 NYCRR 100.6[B][4]). A part-time judge may engage in the private practice of law, subject to certain limitations (see 22 NYCRR 100.6[B][1]-[3]; Judiciary Law § 471). For example, a part-time lawyer/judge may not practice law in the court on which the judge serves (see 22 NYCRR 100.6[B][2]), or before another part-time lawyer/judge who presides in a court in the same county (see id.).

         The Committee has previously advised that a part-time lawyer/judge may serve as assigned counsel² in another court in the same county where the judge serves, before a full-time judge (see Opinion 12-77; see also Opinions 04-40 [part-time City Court judge who is a lawyer may appear as assigned counsel for indigent defendants in criminal proceedings, pursuant to an appointment under Article 18-B of the County Law in another city court in the same county, where all of the judges in that court are full-time judges]; 02-130 [the Rules Governing Judicial Conduct permit a part-time judge to accept appointments under section 722 of the County Law in family court or county court, where all of the judges are full-time judges]).

         A part-time lawyer/judge may also serve as assigned counsel before a part-time non-lawyer judge in another court in the same county where the judge serves (see Opinions 99-97 [Vol. XVIII]; 91-86 [Vol. VIII]).

         Finally, the Committee has advised that a part-time lawyer/judge may appear before another part-time lawyer/judge who presides in the same county, where the other judge is either not admitted to practice law in New York State, or is permitted to practice law only in certain very limited circumstances due to his/her full-time employment with the Unified Court System (see Joint Opinion 10-73/10-100/10-167). The Committee concluded that the restrictions on practice of law by full-time Unified Court System employees effectively precluded them from appearing in the court in which the inquiring judge presided, thus negating any appearance that the two part-time lawyer/judges could afford each other “favorable treatment” in each other’s courts (see id.).

         The Committee has not previously addressed whether a part-time lawyer/judge may serve as assigned counsel before the parole board in an administrative appeal of the board’s adverse decision, but believes the same principles apply. For purposes of restricting the practice of law in a “court in the county in which [the inquiring judge’s] court is located” before another “judge who is permitted to practice law” (see 22 NYCRR 100.6[B][2]), the Committee concludes that the parole board is not a “court in the [same] county,” and the officers before whom the inquiring judge will appear are not the equivalent of a “judge who is permitted to practice law,” within the meaning of the Rules Governing Judicial Conduct. Critically, the intention behind the rule is “to avoid even the perception that judges who also are colleagues in the practice of law might afford each other favorable treatment” (see Joint Opinion 10-73/10-100/10-167). This perception does not seem plausible on these facts, where the inquiring lawyer/judge will appear, not before a single part-time judge of the Unified Court System who is permitted to practice law, but before multiple full-time members of the parole board, who need not be attorneys (see Executive Law § 259-b[2]).³ Moreover, if the administrative appeal is denied and the inmate decides to proceed further, the inmate would commence an article 78 proceeding which is ordinarily brought in Supreme Court, rather than in the town, village or city court in which the judge serves (cf. Opinion 92-115 [Vol. X] [part-time acting city court judge may serve as part-time law clerk to a county court judge in the same county; but the clerk should not participate in any way in appeals from his actions as an acting city court judge]).

         Accordingly, the inquiring judge may accept assignments from a county court judge to represent prison inmates in their initial administrative appeals before the parole board.

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     ¹ The rules of professional conduct for lawyers state that “[a] lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances, the client gives informed consent and where necessary notice is provided to the tribunal and/or opposing counsel” (22 NYCRR Part 1200, Rule 1.2[c]).

     ² Part 36 does not apply to appointments of assigned counsel under County Law Art. 18-B (see Opinion 03-49; 22 NYCRR 36.1).

     ³ The parole board consists of up to 19 full-time members, who are prohibited from holding any other public office (see Executive Law § 259-b[1], [4]). Members must have at least an undergraduate degree, plus at least five years of experience “in one or more of the fields of criminology, administration of criminal justice, law enforcement, sociology, law, social work, corrections, psychology, psychiatry or medicine” (Executive Law § 259-b[2]). Appeals are heard by a three-member panel (see 9 NYCRR 8006.4[b], [d]).