Opinion 18-184

December 11, 2018

Digest:         A part-time judge who is also a law clerk to a full-time judge in a criminal part may not avoid insulation as a law clerk in matters originating in his/her court by allowing his/her co-judges to assume responsibility for all felony arraignments, felony hearings and other felony-related criminal proceedings in that court.

Rules:          Judiciary Law § 16; 22 NYCRR 50.3(a); 100.2; 100.2(A); 100.3(A); Opinion 16-162.

Opinion:

         The inquiring part-time justice also serves as law clerk to a full-time superior court judge assigned to a criminal part. The justice is aware of Opinion 16-162, which requires his/her insulation as a law clerk from all matters originating in the justice court, even if handled by another justice. As the superior court here does not hear appeals from the justice court, the inquiring justice proposes an alternative approach, in which he/she would be completely insulated in the justice court from felony arraignments, felony hearings or other felony-related criminal proceedings. His/her co-justices have agreed to this proposal.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge’s judicial duties take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]). Such duties “include all the duties of the judge’s office prescribed by law” (id.).

         We have said a county court judge whose full-time court attorney is a part-time town justice in the same county may continue to preside over cases originating in or appealed from the town court, provided his/her court attorney is insulated from those cases and the insulation is disclosed on the record to all parties and their counsel (see Opinion 16-162).

         Although it is permissible for a part-time judge to serve concurrently as a full-time court attorney or law clerk,¹ we conclude the judge must be insulated as a nonjudicial employee in the superior court from all matters originating in his/her court. The proposed work-around, insulating the inquiring justice as a judge from all felony matters in the justice court in order to facilitate his/her nonjudicial employment, would improperly give precedence to his/her extra-judicial duties as a law clerk and thus subordinate his/her duties as a judge in violation of the Rules (see 22 NYCRR 100.3[A]). We further note that if a law clerk in superior court is deemed to be acting “as an attorney or counselor” in that court, our conclusion may be further buttressed by consideration of Judiciary Law § 16 (judge must not “act as an attorney or counselor” in any action “originating” in that judge’s court).

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¹We note that a nonjudicial employee of the Unified Court System may need to obtain prior written administrative approval to hold both positions (see 22 NYCRR 50.3[a]). For guidance on Part 50, court personnel may consult the Office of Court Administration’s Nonjudicial Ethics Helpline (888-283-8442).