Opinion 19-56

May 2, 2019

Digest:         A part-time judge may serve as a Department of Social Services attorney in the same county and handle neglect proceedings in Family Court. However, if the DSS role requires numerous recusals as judge, or becomes involved in prosecuting JD or PINS cases, then the judge must choose between the positions.

Rules:          Judiciary Law §§ 14, 16, 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.6(B)(2); 100.6(B)(4); Opinions 15-205; 15-09; 91-144.

Opinion:

         A Department of Social Services (DSS) attorney seeks a part-time judgeship within the same county, and asks if he/she may serve simultaneously in both positions. Currently, the inquirer’s court appearances take place primarily in Family Court, where “the bulk of [his/her] work consists of meeting with and advising caseworkers, filing neglect petitions and thereafter representing” DSS. The inquirer is “not involved in the prosecution of Juvenile Delinquents or PINS [persons-in-need-of-supervision] matters.” He/she does not anticipate any appearances in a local justice court and notes his/her DSS colleagues could handle such matters if they ever arose.

         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 certain limitations. For example, the judge must not practice law in “the court on which the judge serves” (22 NYCRR 100.6[B][2]), or “in any other court in the county in which his or her court is located, before a judge who is permitted to practice law” (id.); nor act as a lawyer “in a proceeding in which the judge has served as a judge or in any other proceeding related thereto” (id.; see also Judiciary Law § 16 [judge must not “practice or act as an attorney or counsellor … in an action, claim, matter, motion or proceeding originating in” a “court of which [the judge] is, or is entitled to act as a member”]). More generally, a part-time judge’s extra-judicial employment, whether in the public or private sector, must not be incompatible with judicial office or conflict or interfere with the proper performance of judicial duties (see 22 NYCRR 100.6[B][4]). Moreover, a judge must disqualify him/herself where required by rule or law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14) and in any other proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).

         Nearly thirty years ago, we said a part-time judge may serve as DSS attorney in the same county where he/she presides (see Opinion 91-144). The judge must disqualify him/herself in any case which involves even an appearance of conflict between the two positions, including cases handled by members of the DSS staff (see id.). However, if the non-judicial position requires numerous recusals as judge, whether due to DSS staff appearances in his/her court or because the county or DSS is involved in cases before him/her, then the judge must choose between the two positions (see id.). More recently, we have also said a judge must not simultaneously hold a position that requires him/her to prosecute offenses, including “quasi-prosecutorial duties, such as handling juvenile delinquency and persons-in-need-of supervision cases” (Opinion 15-205).

         Applying these principles here, we conclude the Rules Governing Judicial Conduct do not prohibit this DSS attorney from serving as a part-time judge in the same county, as he/she primarily handles neglect petitions in Family Court. However, if the inquirer becomes personally involved in prosecuting PINS or JD cases at DSS, even in a supervisory capacity, then he/she must either resign from DSS or from the judgeship (see Opinions 15-205; 15-09). Also, if the DSS position results in many recusals, he/she must choose between the two positions (see Opinion 91-144).

         As always, we address only ethical issues, as we have no authority to address any potential legal incompatibilities of office or legal conflicts (see Judiciary Law § 212[2][l]).