Opinion 17-141

October 19, 2017

Digest:         Although a part-time judge may accept 18-B assignments, he/she may not serve as administrator of the county’s 18-B plan, even if a bar association initially reviews the 18-B vouchers for irregularities.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(B)(6); 100.4(G); 100.6(B)(1)-(5); Opinions 16-137; 13-50; 12-77; 10-200/11-74; 09-178; 99-97; 91-86.

Opinion:

         A part-time city court judge asks if he/she may contract with the county in which he/she presides to be the administrator for the county’s 18-B plan (see generally County Law art. 18-B, §§ 722 et seq.). The judge notes that the county has set up a three-part review/approval process for 18-B vouchers: a local bar association initially reviews submissions for accuracy, checks mathematical calculations, and reviews the submissions for other discrepancies; the vouchers are then submitted to the presiding judge and then to the 18-B plan administrator who forwards them to the county finance department for payment. The judge specifically asks if the bar association’s involvement in the approval process makes a difference in the analysis. Finally, if the judge is permitted to serve as administrator of the county’s 18-B plan, he/she further asks if he/she may also accept 18-B assignments.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Moreover, a judge’s judicial duties take precedence over his/her extra-judicial activities (see 22 NYCRR 100.3[A], Opinion 16-137). Thus, a part-time judge’s ability to practice law and accept public employment is subject to certain limitations (see 22 NYCRR 100.6[B][1]-[5]; 100.4[G]). Significantly, any such employment must not be incompatible with the judge’s judicial office nor may it interfere with judicial duties (see 22 NYCRR 100.6[B][4]; Opinion 13-50). A judge also may not initiate, permit or consider ex parte communications or consider other communications made to the judge outside the presence of the parties or their attorneys concerning a pending or impending case unless an exception applies (see 22 NYCRR 100.3[B][6]).

         We have previously advised that a part-time town justice must not serve as administrator of the assigned counsel program in the county where he/she presides (see Opinion 09-178). Here, too, we conclude the position of part-time city court judge and administrator of the county’s 18-B plan are incompatible. The judge as administrator of the 18-B plan would be called upon to review and approve vouchers and would risk exposure to ex parte information about matters pending in city court and/or cases that an administrative judge might need to transfer to his/her court (see Opinion 09-178; 22 NYCRR 100.3[B][6]). Additionally, the judge could not serve as plan administrator, presiding judge, and 18-B attorney at the same time because it would create an appearance of impropriety and almost certainly frustrate, if not defeat, the purpose behind the county’s three-step process (see Opinions 10-200/11-74; 09-178). Finally, the bar association’s involvement does not affect the analysis, as the judge’s proposed dual role would undermine or frustrate the county’s three-step approval and review process.

         The judge only asks if he/she can accept 18-B assignments while at the same time serving as administrator of the 18-B plan, which is impermissible. However, we do note that a part-time judge may generally accept such assignments, subject to certain limitations (see Opinion 16-137; 12-77; 99-97; 91-86).