Opinion 16-32

March 16, 2016

Digest:         A part-time city court judge who presides over arraignments and other criminal cases should not serve as sheriff’s office part-time in-house counsel.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(G); 100.6(B)(1); 100.6(B)(4); Opinions 13-130; 09-78; 09-19; 08-145; 07-01; 03-118; 98-153; 95-157; 93-110; 91-149; 91-29.

Opinion:

         A newly elected/appointed part-time city court judge, who presides at off-hour arraignments and holds a regular traffic court calendar, asks if he/she may also serve as part-time in-house counsel on the county sheriff’s payroll. His/her responsibilities at the sheriff’s office involve only civil transactional matters, such as reviewing and advising on leases, contracts, land use matters, Freedom of Information Law requests, and compliance issues. The judge has no law enforcement responsibilities. The judge also states the sheriff’s office rarely appears in the city court because the city has its own police force and marshals.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A part-time, unlike a full-time, judge may practice law, subject to certain limitations (see NYCRR 100.6[B][1]; 100.4[G]), and may accept public employment if compatible with judicial office and if it does not interfere with the proper performance of the judge’s duties (see 22 NYCRR 100.6[B][4]).

         As to non-attorney positions, the Committee has advised that, if two conditions are met, a part-time judge may enter an employment relationship with a law enforcement agency, such as a sheriff’s office. First, the part-time judge’s responsibilities at the agency should not be, or appear to be, a peace officer or quasi-law enforcement role (compare Opinion 13-130 [may not be employed as a pistol permit clerk in the sheriff’s department] with Opinions 08-145 [may be a public safety advocate with the sheriff’s department]; 03-118 [may be a behind-the-scenes data entry clerk]; 91-149 [may be a civilian employee of the state police]). Second, the agency should not appear so frequently in the judge’s court so as to interfere with the judge’s judicial duties (see Opinions 13-130; 07-01; cf. Opinions 08-145; 91-149).

         By contrast, the Committee has never said a part-time judge may serve as in-house counsel to a law enforcement agency. Although a part-time attorney judge may represent an individual, local police officer (see e.g. Opinions 09-78; 09-19), the Committee has advised a part-time judge not to serve as legal counsel to a police chiefs’ association (see Opinion 93-110) or as pro bono counsel to an association of police officers (see Opinion 91-29). The Committee decided such employment is incompatible with judicial office because of the public perception of partiality (see Opinions 93-110; 91-29). Although, a part-time judge may allow his/her law firm to represent a deputy sheriffs’ association in a different county in labor-related issues before the American Arbitration Association pursuant to a collective bargaining agreement (see Opinion 95-157), but a judge may not undertake similar representations in his/her own county and may not even remain a member of a law firm that represents the local sheriffs’ association (see Opinion 98-153 [finding an appearance of impropriety]).

         Although the inquiring judge’s in-house counsel role at the sheriff’s office is limited to transactional work and the sheriff’s office seldom appears in the judge’s court, it is nonetheless in the same county as the judge’s court. From a reasonable layperson’s perspective, a judge who represents law enforcement interests as an in-house attorney, in the very same county where the judge presides, will be perceived as too closely aligned with law enforcement interests.¹ The Committee believes, if this judge were to continue on the local county sheriff’s payroll as part-time in-house counsel, the judge’s association with law enforcement within the court’s jurisdiction, in his/her capacity as an attorney, would create an appearance of impropriety, incompatible with holding judicial office.

         Accordingly, this judge may not serve as part-time in-house counsel to the county sheriff’s office.

_________________________

     ¹ This is especially true when the local county sheriff’s office transports prisoners to the city court for court appearances, as an incarcerated defendant who believes he/she has been mistreated during this process may be reluctant to complain to a judge who is an in-house counsel to the sheriff’s office. The fact that the judge “only” performs transactional work is unlikely to assuage the defendant’s concerns.