Opinion 13-98

September 12, 2013

Digest:         Under the circumstances presented, a part-time judge may accept paid employment as an assistant staff counsel to the Minority Conference of a county legislature, provided that (1) his/her actions are clearly identifiable as those of an attorney representing a client and not as partisan political activity; (2) he/she interacts directly with Minority Counsel in the performance of his/her duties, rather than with individual legislators or their constituents; and (3) he/she does not attend legislative sessions or Minority Caucuses or other political gatherings.

Rules:          22 NYCRR 100.2; 100.2(A); 100.5; 100.5(A)(1)(I); 100.5(A)(1)(c), (g); 100.6(B)(1)-(5); Opinions 12-30; 09-165; 08-42; 06-157; 02-68; 97-86 (Vol. XVI); 94-10 (Vol. XII).

Opinion:

         A part-time judge asks whether he/she may accept employment as an associate staff counsel for the Minority Legislative Conference of a County Legislature. The judge states that the paid position “is not political in nature and would not require [him/her] to engage in any partisan activities.” Rather, the judge will “interact directly with Minority Counsel in dispatching [his/her] duties and otherwise remain essentially anonymous. Specifically, [the judge] will not attend legislative sessions [or] Minority Caucuses, and [will] not be required to liaise with any legislators or constituents.”

         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 judge must not directly or indirectly engage in any political activity except as authorized by the Rules Governing Judicial conduct or by law (see 22 NYCRR 100.5[A][1][I]). Among other restrictions, a judge is specifically prohibited from engaging in partisan political activity (see 22 NYCRR 100.5[A][1][c]) and attending political gatherings (see 22 NYCRR 100.5[A][1][g]). A part-time judge may, subject to certain limitations, engage in the private practice of law (see 22 NYCRR 100.6[B][1]-[3], [5]), and may accept public employment in federal, state or municipal departments or agencies so long as 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 advised that “positions which would invariably immerse a judge in partisan political activity are incompatible with judicial office, and therefore barred” (Opinion 06-157). Thus, the Committee has advised that a part-time judge may not accept employment as counsel to a state senator, where “the primary functions of the position include service to constituents of a partisan political nature” (Opinion 97-86 [Vol. XVI]). Similarly, a part-time judge may not serve as a community liaison representative for a state assembly member, where “the judge would meet with local constituents, ‘listen to their problems or requests, and forward a report of some kind to the [legislator]’” (Opinion 94-10 [Vol. XII]). Of particular note, in Opinion 06-157, the Committee advised that a part-time judge may not serve as counsel to the Minority Conference of a County Legislature where

[t]his position would require the inquirer to provide legal advice to conference members on matters pending before the legislative body, draft press releases, position papers and proposed legislation, and to interact “on behalf of the Minority Conference with a wide array of public and private officials, agencies and their staffs.”

In each of these instances, the Committee concluded that such service “would inevitably involve the judge in impermissible, partisan political activity” (id.)

         Here, however, the judge would not serve as the Minority Counsel, but would serve as an assistant staff counsel. Although the Committee continues to believe that, in most cases, “counsel to a minority conference of a legislature would frequently and unavoidably be drawn into discussions of controversial, partisan political matters” (Opinion 06-157), it appears that the job responsibilities of the assistant staff counsel as set forth in the inquiry are specifically designed to exclude partisan political activities and functions of the type discussed in the Committee’s prior opinions.

         Where the absolute bar of Opinions 06-157, 97-86 (Vol. XVI), and 94-10 (Vol. XII) does not apply, the Committee has advised that, subject to certain safeguards, an individual who is subject to Section 100.5, but is nonetheless permitted to practice law, may provide legal advice to political parties or candidates in the context of a bona fide attorney-client relationship. Thus, the Committee has advised that a part-time village justice may serve as counsel of record for a candidate for election to public office only if the justice can avoid involvement in any aspect of the candidate’s political campaign, and he/she is fairly compensated for any services provided (see Opinion 02-68). Similarly, the Committee has advised that a lawyer who is running for elective judicial office may be employed as an election expert by another candidate or a political party only if (1) he/she is formally retained so that an attorney-client relationship exists; (2) his/her actions are clearly identifiable as those of an attorney representing a client, and not as partisan political activity; and (3) he/she is fairly compensated for his/her legal services (see Opinion 08-42). Subsequently, the Committee advised that as a private attorney, a Judicial Hearing Officer may give legal and/or ethical advice to public officers, party officials and/or political party members subject to the same conditions as set forth in Opinion 08-42 (see Opinion 09-165).

         Moreover, the Committee has advised that a part-time judge may be employed as clerk to the county legislature, where “the clerk’s primary duties are to schedule meetings for the county legislature and to take the minutes at such meetings” and the “clerk is not otherwise involved in the legislative process or in political party affairs” (Opinion 12-30).

         Under the circumstances presented, the Committee concludes that the inquiring judge may accept paid employment as an assistant staff counsel to the Minority Conference of a County Legislature, provided that (1) his/her actions are clearly identifiable as those of an attorney representing a client, and not as partisan political activity; (2) he/she interacts directly with Minority Counsel in the performance of his/her duties, rather than with individual legislators or their constituents; and (3) he/she does not attend legislative sessions or Minority Caucuses, or other political gatherings (see generally Opinions 12-30; 09-165; 08-42; 06-157; 02-68; 97-86 [Vol. XVI]; 94-10 [Vol. XII]). If any of these conditions are no longer met, or if it otherwise becomes clear that the position does, in fact, call for impermissible political activity, the judge may not continue to hold both positions.