Opinion 15-200

January 28, 2016

Digest:         Whether a full-time judge may serve in the U.S. Army Reserve Judge Advocate General Corps raises legal questions the Committee may not address.

Rules:          NY Const art VI, §§ 20(b); 20(b)(1), (4); Judiciary Law 212(2)(l); 22 NYCRR 100.4(G); 101.1; Opinion 02-03/02-17.

Opinion:

         A full-time judge who is subject to article VI, section 20(b) of the state constitution¹ asks whether it is ethically permissible to serve in the United States Army Reserve Judge Advocate General Corps (see generally http://www.goarmy.com/jag.html [“Work for the Best Law Firm in the World”]).

         While the Rules Governing Judicial Conduct prohibit all full-time judges from practicing law as a matter of ethics (see 22 NYCRR 100.4[G]), for some full-time judges, it is also a constitutional restriction. Of particular relevance here, judges who are subject to section 20(b) must not:

(1) hold any other public office or trust except an office in relation to the administration of the courts, member of a constitutional convention or member of the armed forces of the United States or of the state of New York in which latter event the legislature may enact such legislation as it deems appropriate to provide for a temporary judge or justice to serve during the period of the absence of such judge or justice in the armed forces; ...

(4) engage in the practice of law, act as an arbitrator, referee or compensated mediator in any action or proceeding or matter or engage in the conduct of any other profession or business which interferes with the performance of his or her judicial duties (NY Const art VI, §§ 20[b][1], [4]).

The final sentence of section 20(b) provides:

Judges and justices of the courts specified in this subdivision shall also be subject to such rules of conduct as may be promulgated by the chief administrator of the courts with the approval of the court of appeals (NY Const art VI, § 20[b]).

         In the Committee’s view, the present inquiry, from a judge who is subject to section 20(b), involves several interrelated legal questions. First, does an appointment to serve in the United States Army Reserve Judge Advocate General Corps constitute a “public office or trust” (NY Const art VI, §§ 20[b][1])? If so, does the exception permitting judges to serve as a “member of the armed forces of the United States” apply (id.)? Or does such an appointment violate the constitutional prohibition on “engag[ing] in the practice of law” (NY Const art VI, §§ 20[b][4])? The Committee is not in a position to resolve the apparent conflict between these two constitutional provisions (see Judiciary Law 212[2][l]; 22 NYCRR 101.1; Opinion 02-03/02-17).

         Finally, assuming that serving in the United States Army Reserve Judge Advocate General Corps is legally permitted under sections 20(b)(1) and 20(b)(4), that then raises legal questions regarding whether, or to what extent, a judge in the military may have the authority under relevant law to request, object to, or refuse to accept, any specific assignment mandated by a legally valid order of the judge’s commanding officers, which might otherwise conflict with the ethical requirement that “[a] full-time judge shall not practice law” (22 NYCRR 100.4[G]) or, indeed, any other provision of the Rules Governing Judicial Conduct (see NY Const art VI, § 20[b]).

         Thus, this inquiry primarily raises legal questions beyond the jurisdiction of this Committee (see Judiciary Law 212[2][l]; 22 NYCRR 101.1; Opinion 02-03/02-17).

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         ¹ This provision applies to a “judge of the court of appeals, justice of the supreme court, judge of the court of claims, judge of a county court, judge of the surrogate’s court, judge of the family court or judge of a court for the city of New York established pursuant to section fifteen of this article” (NY Const art VI, § 20[b]).