Opinion 18-75

May 10, 2018

Digest:         Where a part-time attorney judge shares office space with the owner of an abstract company who performs administrative tasks for the judge in lieu of rent, the judge need not prohibit him/her from accepting employment as the part-time secretary to the county public defender, but must be careful to avoid any discussion of public defender’s cases with him/her. The judge may continue to preside in matters in which the public defender’s office appears, provided the judge can be fair and impartial.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(B)(6); 100.3(B)(8); 100.3(E)(1); 100.4(A)(1); 100.4(A)(3); 100.6(B)(4); Opinions 17-105; 16-155; 07-142; 97-107.

Opinion:

         A part-time attorney judge shares office space with the owner of an abstract company who performs administrative tasks as secretary/office manager for the judge in lieu of rent. The judge’s private practice is limited to civil matters, and the secretary/office manager has no involvement whatsoever in the judge’s judicial duties and no access to the court files. The judge asks if the secretary/office manager may accept employment as the part-time secretary to the county public defender.

         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]). Thus, a judge must disqualify him/herself in any proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). A part-time attorney judge’s law practice and other extra-judicial activities must not conflict or interfere with proper performance of his/her judicial duties or cast reasonable doubt on his/her ability to act impartially as a judge (see 22 NYCRR 100.6[B][4]; 100.4[A][1], [3]). A judge also must not engage in impermissible ex parte communications (see 22 NYCRR 100.3[B][6]) or publicly comment on a pending or impending case in the United States or its territories (see 22 NYCRR 100.3[B][8]).

         We have previously addressed issues involving a court clerk’s proposed outside employment with the public defender’s law office (see Opinions 07-142; 97-107). Here, however, the secretary/office manager works exclusively in the judge’s private law office and has no connection whatsoever to the court. The secretary/office manager’s proposed secretarial employment with the public defender will not require him/her to appear before the judge or otherwise interfere with the court’s operations (cf. Opinion 17-105 [town justice’s law firm employee running for town board]). On these facts, we can see no impropriety in the secretary/office manager’s proposed employment. Accordingly, the judge need not prohibit him/her from accepting employment as the part-time secretary to the county public defender. To avoid any possible appearance of impropriety and to minimize the risk of impermissible ex parte communications, the judge must scrupulously avoid any discussion of public defender’s cases with the secretary/office manager (see generally 22 NYCRR 100.3[B][6]; Opinion 16-155 [judge must “take reasonable steps to discourage and limit ex parte communications”]).¹

         Because the secretary/office manager is completely segregated from all court business, his/her employment with the public defender will not cause the judge’s impartiality to be “reasonably questioned” when the public defender's office appears before the judge, and the judge therefore need not disqualify him/herself or make any disclosure (22 NYCRR 100.3[E][1]). Thus, assuming the judge can be fair and impartial, he/she may continue to preside in matters involving the public defender’s office.

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         ¹ We trust that the judge already has the practice of not discussing his/her court work with the secretary/office manager (see 22 NYCRR 100.3[B][6]; 100.3[B][8]).