Opinion 14-136

September 4, 2014

Digest:         A part-time judge may not accept employment as a staff attorney with Legal Aid in the same county where the judge presides, where the proposed employment would unduly disrupt court operations.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(G); 100.6(B)(1)-(4); Opinions 10-162; 09-239; 09-100; 09-47(A); 05-88; 98-55 (Vol. XVI); 95-81 (Vol. XIII); 95-03 (Vol. XIII).

Opinion:

         The inquiring part-time judge asks whether he/she may accept employment as a staff attorney with Legal Aid in the same county where the judge presides, working exclusively on foreclosure matters that will be heard in Supreme Court. The judge notes that he/she does not preside in the landlord-tenant part in which some Legal Aid attorneys appear and is “never assigned landlord-tenant cases.” Instead, another judge of his/her court handles all such matters. The judge estimates that Legal Aid staff attorneys appear before his/her co-judge in approximately 1,200-1,400 landlord-tenant cases per year.

         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]). Although a judge’s judicial duties must take precedence over all the judge’s activities (see 22 NYCRR 100.3[A]), a part-time judge may accept public or private employment, provided the 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]). A part-time lawyer judge, unlike a full-time judge, may also practice law (see 22 NYCRR 100.4[G]; 100.6[B][1]). However, a part-time lawyer judge may not practice law in any court located in the same county where he/she presides, before another judge who also is permitted to practice law (see 22 NYCRR 100.6[B][2]). Neither a part-time lawyer judge nor his/her law partners or associates may practice law “in the court on which the judge serves” (22 NYCRR 100.6[B][2]-[3]), and the judge’s co-judge(s) must also honor the prohibition (see 22 NYCRR 100.6[B][3]).

         The Committee has not previously considered whether a judge may serve as a staff attorney for Legal Aid in the same county where the judge presides. The Committee has previously advised that a part-time judge may not serve as a public defender within the same county where the judge presides, but may serve only in another county (see Opinions 05-88; 98-55 [Vol. XVI]; 95-81 [Vol. XIII]) and that a part-time City Court judge may not accept appointment as in-house counsel to the local housing authority, even if eviction cases are assigned to the other City Court judge and such cases are handled by a special counsel retained by the housing authority (see Opinion 95-03 [Vol. XIII]).

         However, the facts addressed in these prior opinions are distinguishable providing relatively little guidance here. In the present inquiry, it appears the inquiring judge would, as a staff attorney for Legal Aid, appear only before full-time judges, and only on foreclosure matters which are not heard in the inquiring judge’s court (see generally 22 NYCRR 100.6[B][2]). Moreover, Legal Aid attorneys only appear in the judge’s court on landlord-tenant matters, and such matters are always assigned to the inquiring judge’s co-judge (see id.). Indeed, the sole question before the Committee, under the facts presented, is whether the inquiring judge’s proposed employment as a staff attorney for Legal Aid would render other staff attorneys of the same Legal Aid office his/her “partners or associates” within the meaning of Section 100.6(B)(3). If so, the inquiring judge would be required to prohibit Legal Aid attorneys from appearing before his/her co-judge, and the co-judge would likewise be required to prohibit them from appearing before him/her (see 22 NYCRR 100.6[B][3]).

          The Committee has construed the term “associate” in Section 100.6(B)(3) “more broadly than the traditional notion of a law firm associate” (Opinions 10-162; 09-239 [judge “must inquire into” relationship between co-judge and certain of the co-judge’s attorney relatives who “may appear to be professionally associated” with the same law practice]; 09-100 [noting that an attorney with an “of counsel” or “per diem” relationship with the judge may be deemed the judge’s “associate”]). Indeed, the Committee’s “concern in situations such as these, is that the attorney’s relationship to a judge of a court can reasonably be perceived as affording that attorney an inappropriate advantage before any judge of that court” (Opinion 09-47[A]). There is nothing in the present inquiry to suggest that the staff attorneys at the local Legal Aid office are, either in appearance or in reality, anything other than “associates” for the purposes of Section 100.6(B)(3). Therefore, the inquiring judge’s proposed employment is impermissible (see 22 NYCRR 100.6[B][3]).