Opinion 18-149

October 18, 2018

Digest:         A part-time judge whose court has a significant criminal calendar, in which most defendants are represented by assigned counsel at arraignment, may not serve as deputy administrator of the assigned counsel program.

Rules:          22 NYCRR 100.2; 100.2(A); 100.6(B)(4); Opinions 18-81; 18-50; 08-58/08-66; 92-76.

Opinion:

         A part-time village justice asks if he/she may serve as a deputy administrator of the county’s assigned counsel program. The program represents virtually all criminal defendants arraigned in the village court and may represent many of them in subsequent proceedings. Much like the part-time counsel position in Opinion 18-81, the deputy administrator would have no budgetary or voucher approval functions but would instead be responsible to (1) create CLE and other attorney training programs, (2) improve delivery of legal services in the courts, and (3) address any deficiencies or issues with attorney representation. The inquiring judge is willing to disqualify him/herself in all criminal matters (perhaps 45-50 cases per year) and says that the associate village justice¹ is willing and able to handle the court’s entire arraignment and criminal calendar, which represents about 25% of the overall caseload. The inquiring judge proposes to continue handling the court’s civil and non-criminal calendars.

         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]). A part-time judge may accept private or public employment that is not incompatible with judicial office and that does not interfere with the proper performance of judicial duties (see 22 NYCRR 100.6[B][4]).

         We recently decided Opinion 18-81, in which another part-time judge asked if he/she could undertake a position with similar responsibilities for helping improve the county’s assigned counsel program. Even though the judge “would not be involved in approving vouchers or other administrative duties [and] would have no budgetary responsibilities,” we said it was impermissible (Opinion 18-81). As we explained there (id. [citations omitted]):

We have advised that a part-time judge may generally accept 18-B assignments but must not serve as administrator of the assigned counsel program in the county where he/she presides. Further, a part-time judge may not accept employment as a staff attorney with Legal Aid in the same county where the judge presides, where the proposed employment would unduly disrupt court operations.

… Clearly, the position [with the assigned counsel program] is intended to improve the legal system and the administration of justice by improving the quality of legal services provided to indigent clients. However, we believe undertaking these high-level responsibilities for the assigned counsel's office in his/her county is incompatible with the judge's judicial office and would create an appearance of impropriety. For example, it could create an appearance of a special relationship between the judge and assigned counsel, which could be seen as affording such attorneys an inappropriate advantage before him/her. It might also raise questions of bias or improper alignment with the defense…. Moreover, the judge’s proposed paid employment with the local assigned counsel program would directly involve the judge with an “activity that ordinarily will come before the judge” and could potentially “involve the judge in frequent transactions” with lawyers “likely to come before the court on which the judge serves.” In sum, the position seems likely to blur the lines between the judicial role and the assigned counsel role.

         Similar principles apply here. Significantly, a judge may not continue to hold extra-judicial employment should the need for disqualification resulting from that employment be so frequent as to interfere with the ability to perform his/her judicial duties (see Opinion 08-58/08-66; 22 NYCRR 100.6[B][4]). Clearly, if a judge’s outside employment “involves too frequent disqualification, and an undue burden on the co-judge, the inquiring judge will have to choose between the two positions” (Opinion 92-76). We have said a part-time judge may not serve as an assistant county attorney where his/her specific responsibilities involved representation of the district attorney’s office, the county public defender’s office and the sheriff’s department (see Opinion 18-50). In Opinion 18-50, the judge’s proposed employment would have required disqualification in virtually all criminal matters in the court. Here, too, this judge would need to disqualify him/herself in all cases involving the assigned counsel program, i.e. in virtually every criminal matter.²

         We therefore conclude this judge must either resign his/her judgeship or decline employment with the assigned counsel program.

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¹ We assume the phrase “Acting Judge” in this inquiry refers to an associate village justice (see Village Law § 3-301[2][a] [“in the event a village has one justice, it shall also have an associate justice who shall serve when requested by the village justice or in the absence or inability of the village justice to serve”]).

² In addition, we understand there are or will be centralized arraignment parts, whether pursuant to a pilot program or pursuant to recently enacted raise-the-age legislation, for some or all off-hour arraignments in the county. If so, we note the inquiring judge would also be disqualified from handling his/her share of the county-wide arraignments, thus putting an increased burden on his/her fellow judges to handle such assignments.