Opinion 18-129

October 18, 2018

Digest:         A part-time lawyer judge who serves as an accessible magistrate must not accept appointment as attorney for the child in a case where he/she previously served as the arraigning judge but is not otherwise ethically barred from accepting appointments as attorney for the child in cases that originate in the youth part.

Rules:          Judiciary Law §§ 16; 17; 22 NYCRR 36.1(b)(1); 100.2; 100.2(A); 100.6(B)(1)-(3); Opinions 18-57/17-166; 16-13; 12-173; 05-51/05-58; 02-61; 93-98.

Opinion:

         The inquiring part-time lawyer judge accepts Family Court appointments as attorney for the child in juvenile delinquency cases. However, the judge has recently been appointed as “an accessible [m]agistrate with county wide jurisdiction to arraign off hour adolescents” pursuant to new raise-the-age legislation. Apparently, when a juvenile offender or adolescent offender is to be arraigned for an offense, he/she must now be brought to the “youth part” of the Supreme or County Court for arraignment by a Family Court judge. However, if the youth part is not then in session, he/she must instead be brought before an “accessible magistrate.” Accordingly, this judge asks if he/she may accept an attorney for the child assignment in a case where another accessible magistrate served as the arraigning magistrate for the juvenile offender or adolescent offender.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must respect and comply with the law, and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A part-time judge may practice law, subject to various limitations (see 22 NYCRR 100.6[B][1]-[3]). For example, a judge must not “act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto” and “shall not practice law in the court on which the judge serves, or in any other court in the county in which his or her court is located, before a judge who is permitted to practice law” (22 NYCRR 100.6[B][2]; see also Judiciary Law § 17). Moreover, a judge must not “practice or act as an attorney or counselor in a court of which he is, or is entitled to act as, a member or in an action, claim, matter, motion or proceeding originating in that court” (Opinion 16-13, quoting Judiciary Law § 16; see also e.g. Opinion 12-173).

         Ordinarily, a part-time lawyer judge “may represent a client in Supreme Court or Family Court, or any other court in which all of the judges are full-time judges” (Opinion 12-173) and may accept appointment as attorney for the child (formerly known as a law guardian) pursuant to the Family Court Act (see Opinions 05-51/05-58; 02-61; 93-98; 22 NYCRR 36.1[b][1]).

         The novel question here is whether the inquiring judge’s service as an accessible magistrate in the youth part means that the judge “is, or is entitled to act as a member” of the youth part, for the purposes of Judiciary Law § 16. If so, the judge could not represent clients in any cases “originating” in the youth part. OCA Counsel’s office analyzed the issue as follows in a memorandum dated October 9, 2018 (footnotes omitted):

In what court then does an accessible magistrate sit when discharging his or her duties? The answer, it seems clear, is that it cannot be any court other than the one to which the accessible magistrate was elected or appointed. This is because Town and Village Justices, and City Court Judges … may not constitutionally be temporarily assigned for service on the superior court in which the youth parts are established.

This renders our analysis a simple one. As none of the judges who are eligible for designation as accessible magistrates, and who may practice law, may be assigned to the superior courts that host youth parts, none of them is “entitled to act as a member” of any of those superior courts.

         Relying on OCA Counsel’s guidance, we conclude a part-time lawyer judge who serves as an accessible magistrate is not ethically barred from acting as a lawyer in all cases “originating” in the youth part (cf. Opinion 18-57/17-166 [“a judge does not violate the Rules Governing Judicial Conduct by fulfilling his/her statutory powers, functions, and duties as a licensing officer in good-faith reliance on statutory authority and administrative guidance on how to exercise that authority”]).

         We note, however, that a part-time judge who is a practicing attorney must not “act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto” (22 NYCRR 100.6[B][2]).

         Thus, we conclude this judge must not accept appointment as attorney for the child in a case where he/she previously served as the accessible magistrate or arraigning judge but is not ethically barred from accepting appointments as attorney for the child in other cases that originate in the youth part, where he/she had no judicial involvement.