Opinion 19-40

March 14, 2019

Digest:         A part-time lawyer judge may concurrently serve as in-house counsel to the state’s education department, where he/she will research and draft opinions for the education commissioner in response to appeals from local school board decisions and licensing determinations.

Rules:          22 NYCRR 100.2; 100.2(A); 100.6(B)(1)-(4); Opinions 17-46; 97-126; 90-134; 89-30.

Opinion:

         A part-time lawyer judge asks if he/she may serve also as an in-house attorney in the NYS Education Department. He/she would help research and draft opinions for the education commissioner in response to (1) “appeals from constituents regarding local school board decisions (issues include student disciplinary decisions, residency determinations, etc.)” and (2) “appeals of determinations regarding eligibility for professional licenses.”

          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 part-time judge may practice law, subject to limitations (see 22 NYCRR 100.6[B][1]-[3]), and also 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 proper performance of the judge’s duties” (22 NYCRR 100.6[B][4]).

         We have said a part-time judge may accept employment as deputy counsel to the NYS Higher Education Services Corporation (see Opinion 97-126); associate staff counsel to the NYS Assembly Committees on Agriculture and Commerce (see Opinion 89-30); or clerk to the board of education (see Opinion 90-134). A part-time judge may also serve as head of a county agency responsible for enforcing a particular county law, where the agency is the licensing authority for an industry and has authority to commence civil administrative proceedings but (I) is unlikely to be involved directly or indirectly in any cases in the judge’s court, (ii) has no authority to prosecute legal or criminal proceedings in any court, and (iii) has no police powers or functions (see Opinion 17-46).

         Here, too, we conclude the proposed employment is permissible, as the education department is unlikely to be involved directly or indirectly in any cases in the judge’s court, the position involves no prosecutorial or law enforcement responsibilities, and the judge will not practice law either in the court on which he/she serves or before another part-time lawyer judge.