Opinion 19-160

January 30, 2020

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         A town justice may also work as a part-time, non-supervisory assistant county attorney in the same county, provided he/she has no prosecutorial or quasi-prosecutorial duties and is fully insulated from all matters involving the district attorney’s office and the sheriff’s office.

Rules:          County Law §§ 501, 502(2), (5); Judiciary Law §§ 212(2)(l); 471; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); 100.6(B)(2)-(4); Opinions 19-110; 18-50; 17-183; 17-45; 15-09; 10-105; 06-98; 1981 NY Ops Atty Gen (Inf) 112; 1978 NY Ops Atty Gen (Inf) 187.

Opinion:

         A part-time town justice asks if he/she may accept a position as a part-time, non-supervisory assistant county attorney within the same county.¹ The judge’s core concern is that the county attorney’s office “provide[s] legal counsel to all county departments,” including the district attorney’s office which prosecutes criminal matters in the judge’s court. On further inquiry, we understand the judge would not be required to perform prosecutorial or quasi-prosecutorial duties, nor would he/she be designated to assume the County Attorney’s duties in the latter’s absence or incapacity.² As assistant county attorney, the judge would also be insulated from proceedings under article 3 of the Family Court Act and matters involving juvenile offenders. Further, although the County Attorney may potentially be called upon to provide legal advice or legal representation to the district attorney’s office or the sheriff’s office, this has not happened in the past decade, and the County Attorney would insulate the judge from such matters. Finally, we understand most cases heard in this town court involve environmental conservation and traffic law violations prosecuted by environmental conservation officers and state troopers. The judge’s court hears approximately ten criminal cases per year, the assistant district attorney typically appears no more than once a month,³ and sentences rarely involve probation.

         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 attorney judge may engage in the practice of law, subject to limitations (see 22 NYCRR 100.6[B][2]-[3]; Judiciary Law § 471) and may accept “public employment in a federal, state or municipal department or agency, provided that such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties” (22 NYCRR 100.6[B][4]).

         Of course, we cannot comment on legal compatibility of the positions (see generally Judiciary Law § 212[2][l]). However, the Attorney General found no statutory or common law incompatibility or conflict of interest where an assistant county attorney, who would neither (a) assume the duties of the County Attorney in his/her absence nor (b) be assigned any matters that conflict with his/her judicial duties, also serves as a town or village justice (see 1978 NY Ops Atty Gen [Inf] 187; 1981 NY Ops Atty Gen [Inf] 112).

         We have said “while there is no per se incompatibility between the positions of assistant county attorney and town justice, there is a conflict if the responsibilities of the assistant county attorney involve quasi-prosecutorial duties such as handling juvenile delinquency and persons-in-need-of-supervision cases” (Opinion 06-98 [citing Family Court Act articles 3 and 7]; see also Opinions 17-183; 17-45). Thus, a town justice who is allowed to practice law generally may serve as a full- or part-time county attorney or assistant county attorney, provided the position does not involve quasi-prosecutorial duties and also if the judge does not recuse too often (see Opinions 15-09; 10-105; 06-98).

         In Opinion 18-50, we addressed a new question about a part-time judge’s concurrent service as an assistant county attorney, in light of that judge’s specific job responsibilities. There, because “a judge is disqualified from presiding over any matter that involves a current or recent client,” we said the judge may not simultaneously serve as an assistant county attorney, where his/her specific duties involve representing “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” (id.).

         Here, although the district attorney’s office and/or the sheriff’s office may potentially be clients of the county attorney’s office, this judge has received assurances he/she will be insulated, as a non-supervisory assistant county attorney, from handling any such matters, if they arise, including providing advice or legal opinions to them outside the litigation context. We believe this procedure is ethically sufficient in a government law office and, thus the judge’s impartiality cannot “reasonably be questioned” in all matters involving the district attorney’s office and/or the sheriff’s office (22 NYCRR 100.3[E][1] [emphasis added]).

         Accordingly, we conclude the judge may accept the position of part-time, non-supervisory assistant county attorney in the same county, provided he/she has no prosecutorial or quasi-prosecutorial duties and is fully insulated from all matters involving the district attorney’s office and the sheriff’s office.

         The judge “must disqualify him/herself when the county attorney’s office appears in the judge’s court, when the county is a party or is otherwise involved in a case before the judge or in any other circumstances that would create even an appearance of impropriety” (Opinion 15-09 fn 1; 22 NYCRR 100.3[E][1]).⁴ As always, if the judge’s outside employment results in excessive disqualifications, he/she must choose between the positions.

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¹ We recently described our “practical, common-sense” approach to determining when an attorney has a “supervisory role” in an office (Opinion 19-110).

² It appears the County Attorney prosecutes and defends all civil actions and proceedings brought by or against the county (see County Law § 501). An assistant county attorney performs duties as directed by the County Attorney (id. § 502[2]). Where, as here, the office has more than one assistant county attorney, the County Attorney designates the order in which the assistant county attorneys are to carry out his/her duties in the event of his/her absence or incapacity and files the designation in the County Clerk’s office (id. § 502[5]).

³ Last year for example, the ADA appeared only five times.

⁴ The disqualification may be subject to remittal in appropriate circumstances if all parties are represented by counsel and the judge can be fair and impartial (see generally 22 NYCRR 100.3[F]).