Opinion 19-12

January 30, 2019

Digest:         A town justice who also serves as a superior court law clerk must be insulated as a law clerk from all matters originating in the town court, and the insulation is not subject to waiver or remittal.

Rules:          Judiciary Law §§ 16; 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(E)(1)(b)(I); 100.3(E)(1); 100.3(F); 100.6(B)(4); 101.1; Opinions 18-184; 16-162; 15-43.

Opinion:

         The inquiring part-time town justice also serves concurrently as a full-time principal law clerk to a county court judge, and is insulated as a nonjudicial employee in the superior court from all matters originating in the town court (see Opinions 18-184; 16-162). The inquirer asks if the insulation may be waived or remitted after full disclosure and agreement on the record of all parties and their counsel, so he/she may assist the county court judge with cases originating in the town court.

         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” (22 NYCRR 100.3[A]). Thus, although a part-time attorney judge may accept “public employment in a federal, state or municipal department or agency” (22 NYCRR 100.6[B][4]), the employment must not “conflict or interfere with the proper performance of the judge’s duties” (id.). A judge also must disqualify him/herself “in a proceeding in which the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]).

         In Opinion 16-162, we simplified the rule for a superior court judge whose court attorney or law clerk serves as a town or village justice. We said the superior court judge must insulate the part-time justice from all cases originating in the justice court, and abolished a former distinction between matters that are appealed from the justice court and matters where the superior court judge merely assumes jurisdiction of a case after arraignment and/or a preliminary hearing. As we explained (id.), even when the justice court exercised preliminary jurisdiction, the superior court judge

is likely to review the entire case file and take any steps he/she believes are legally necessary as a judge. While this differs from reviewing the case on appeal, the Committee believes litigants and the general public will appreciate knowing the superior court judge is reaching his/her own, independent conclusions about the case file, without the assistance of the justice who presided over the arraignment and preliminary hearing (or the latter’s co-justice).

We have likewise said a part-time town justice who is also a court attorney must be insulated as a nonjudicial employee in the superior court from all matters originating in his/her court (see Opinion 18-184). This is appropriate because a judge’s judicial duties take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]).¹

         Significantly, the proposed waiver of insulation here is designed to permit the town justice to act as a court attorney on cases originating in his/her court, thus effectively elevating the justice’s nonjudicial employment over his/her judicial duties. Indeed, if the insulation were remitted and the inquiring law clerk participated in a case originating in his/her town court, he/she could not later preside in the case if it returns to his/her court.²

         Accordingly, the law clerk’s insulation may not be waived or remitted in cases originating in his/her town court.

____________________________________

¹ Again, “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” (Opinion 18-184). We express no view on this legal question (see 22 NYCRR 101.1; Judiciary Law § 212[2][l]).

² Where a judge personally “served as a lawyer in the matter in controversy” (22 NYCRR 100.3[E][1][b][i]), the judge’s disqualification is not subject to remittal (see 22 NYCRR 100.3[F]; see also Opinion 15-43 [forbidding waiver of law clerk’s insulation under analogous circumstances]). Whether or not a law clerk’s work is legally deemed to be the practice of law in that court (see supra fn 1), we believe it is sufficient involvement “as a lawyer” to require disqualification under Section 100.3(E)(1)(b)(i).