Opinion 14-195

January 29, 2015

Digest:         Whether a part-time judge may continue to practice law, while he/she is serving temporarily as a full-time judge pursuant to Uniform City Court Act §2104(e)(2), depends on whether the judge is legally a full-time judge during that period. It thus presents a legal question beyond the jurisdiction of the Advisory Committee on Judicial Ethics.

Rules:          Judiciary Law 212(2)(l); Uniform City Court Act §2104(e)(2); 22 NYCRR 100.0(L); 100.4(G); 100.6(B)(1); Opinions 11-87; 98-81 (Vol. XVII); 97-119 (Vol. XVI).

Opinion:

         A part-time city court judge has learned that his/her full-time colleague may resign. The judge asks whether he/she may continue to practice law if he/she assumes the full-time city court judgeship temporarily pursuant to Uniform City Court Act (UCCA) §2104(e)(2).

         While a part-time judge who is permitted to practice law may do so while serving as a part-time judge (see 22 NYCRR 100.6[B][1]), a full-time judge is prohibited from practicing law (see 22 NYCRR 100.4[G]). The applicable UCCA provision provides as follows (UCCA §2104[e][2]):

(2) Whenever a vacancy in the office of city court judge occurs other than by expiration of term, it shall be filled as herein provided:

(I) If the office is elective, the part-time city court judge of the court on which the vacancy has occurred or, if there be more than one part-time city court judge of such court, the part-time city court judge senior in service, shall fill the vacancy temporarily until the thirty-first day of December following the next general city election at which the vacancy can be filled. At such election, a successor shall be elected to fill the vacancy for a full term of office, to commence on January first next thereafter. If there is no part-time city court judge of the court on which the vacancy has occurred or if the incumbent part-time city court judge declines to serve as provided herein or if the vacancy is in the office of part-time city court judge, the mayor of the city in which the court on which the vacancy has occurred is located shall appoint a qualified person to fill the vacancy temporarily as provided in this subparagraph. Where a part-time city court judge fills a vacancy in the office of full-time city court judge pursuant to this subparagraph:

(A) he or she shall not be deemed to have vacated the office of part-time city court judge, his or her term in such office shall not be deemed to have been interrupted and, upon expiration of service as full-time city court judge hereunder, he or she shall resume service as part-time city court judge for the remainder of such term; ...

         The Rules Governing Judicial Conduct define the term "part-time judge" as "a judge who serves repeatedly on a part-time basis by election or under a continuing appointment" (22 NYCRR 100.0[L] [noting that the definition includes "an acting part-time judge"]). The Rules do not, however, provide any guidance as to whether a duly elected or appointed part-time judge who has taken on full-time judicial responsibilities pursuant to UCCA §2104(e)(2) should now be considered as a "full-time judge" who is prohibited from practicing law (see 22 NYCRR 100.4[G]), or as a "part-time judge" who may continue to practice law (see 22 NYCRR 100.6[B][1]). The Committee believes that this question cannot be answered without interpretation of the statutory language and/or relevant case law, if any. Such legal questions are beyond the Committee's jurisdiction (see Judiciary Law §212[2][l]; 22 NYCRR 101.1). Accordingly, the Committee must decline to respond (see Opinion 11-87; 98-81 [Vol. XVII]; 97-119 [Vol. XVI]).