Opinion 18-50

March 29, 2018

Digest:         A part-time judge may not simultaneously serve as an assistant county attorney, where his/her specific responsibilities involve representation of the district attorney’s office, the public defender’s office and the sheriff’s department, all of whom regularly appear in the judge’s court.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.6(B)(1)-(4); Opinions 17-172; 17-100; 09-19; 08-58/08-66; 95-05; 91-149; 88-46.

Opinion:

         A non-judge asks if he/she may continue his/her current employment as an assistant county attorney after assuming part-time judicial office within the same county. The inquirer’s primary responsibility as assistant county attorney is to defend the county against “civil/municipal liability claims ... from start to finish,” including claims made against the sheriff’s office, the district attorney’s office, and the county public defender’s office.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself when his/her impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). A part-time attorney judge may practice law, subject to certain limitations (see 22 NYCRR 100.6[B][1]-[3]), and may accept public employment in a municipal department or agency “provided that such employment is not incompatible with the judicial office and does not conflict or interfere with the proper performance of the judge’s duties” (22 NYCRR 100.6[B][4]).

         In general, a part-time judge may also serve as assistant county attorney within the same county, provided neither the judge nor any attorney under his/her supervision has any prosecutorial duties (see e.g. Opinion 17-172) and further provided he/she disqualifies himself in cases involving a conflict or an appearance of impropriety (see Opinion 88-46). However, where a part-time judge’s extra-judicial employment results in frequent disqualification that interferes with the judge’s ability to perform his/her judicial duties, the positions are ethically incompatible, and the judge must resign either from serving as judge or from the incompatible position (see e.g. Opinions 08-58/08-66; 91-149).

          We have also advised that a judge is disqualified from presiding over any matter that involves a current or recent client (see 22 NYCRR 100.3[E][1]; Opinions 17-100; 09-19; 95-05).

         Here, the inquirer’s specific employment responsibilities as assistant county attorney would require his/her disqualification from all matters involving his/her institutional clients, i.e. the district attorney’s office, the public defender’s office, and the sheriff’s department, all of whom would regularly appear before the judge. Clearly, this would require the judge’s disqualification in a very significant percentage of the court’s caseload, thus interfering with the judge’s ability to perform his/her judicial duties.

         The inquirer may, of course, continue to seek appointment or election to part-time judicial office. However, he/she must either resign from serving as an assistant county attorney or else change responsibilities within the county attorney’s office before assuming judicial office.