Opinion 19-71

June 20, 2019

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 who also serves as principal court attorney in superior court for a designated youth part judge:

            (1) may arraign adolescent offenders in the county’s centralized arraignment part;

            (2) must be insulated as a court attorney from (a) cases he/she arraigned in the centralized arraignment part and (b) all cases originating in or appealed from the town court; but

            (3) need not otherwise be insulated as a court attorney from adolescent offender cases merely because they were arraigned in the centralized arraignment part.

Rules:            22 NYCRR 50.3(a); 100.2; 100.2(A); 100.3(A); 100.6(B)(4); Opinions 19-12; 18-184; 18-129; 18-23/18-56; 16-162; 10-98; 07-194.

Opinion:

         The inquiring town justice also serves as principal court attorney to a superior court judge who is “the designated judge under Raise the Age for Youth Part.” In the inquirer’s county, town and village justices conduct after-hours arraignments of adolescent offenders in the centralized arraignment part. Thus, the inquirer is concerned that he/she may arraign an adolescent offender “and then be present and/or advise the Judge on those cases in Youth Part.”¹ Accordingly, the justice asks if he/she may arraign adolescent offenders. If so, the justice further asks if he/she must be insulated as a court attorney from adolescent offender cases and whether it makes a difference if the adolescent offender case originated in his/her town court.

         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 judge’s judicial duties take precedence over all the judge’s other activities (see 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 full-time court attorney to a superior court judge may concurrently serve as a part-time judge in the same county (see e.g. Opinions 18-184; 10-98).² However, a part-time judge may not participate as a court attorney in appeals from his/her own judgments and decisions (see Opinions 18-23/18-56; 07-194). Indeed, he/she must be insulated as a nonjudicial court employee from all matters originating in or appealed from his/her court, even if handled by a co-judge (see Opinions 19-12 [barring waiver or remittal of insulation]; 18-184; 16-162). We have emphasized that judges may not insulate themselves as judges to facilitate their nonjudicial employment (see Opinion 18-184; 22 NYCRR 100.3[A]).

         In Opinion 18-129, we concluded that a part-time judge who is a practicing attorney “must not accept appointment as attorney for the child in a case where he/she previously served as the accessible magistrate or arraigning judge but is not ethically barred from accepting appointments as attorney for the child in other cases that originate in the youth part, where he/she had no judicial involvement.”

         Applying these principles, we conclude the inquiring justice may arraign adolescent offenders in the centralized arraignment part. The inquirer must be insulated as a court attorney from (a) cases he/she arraigned in the centralized arraignment part and (b) cases originating in or appealed from the town court; but need not otherwise be insulated as a court attorney from adolescent offender cases merely because they were arraigned in the centralized arraignment part by a justice of another town or village court.

         We note, for completeness, that the superior court judge is not necessarily disqualified in cases where his/her court attorney conducted the arraignment, provided no party is appearing without counsel, but must insulate the court attorney and disclose the insulation (see Opinion 16-162).

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¹ The Office for Justice Initiatives website explains: “Adolescent Offender (AO) is a new category created by the Raise the Age legislation. AOs are 16- or 17-years-olds who are accused of committing a felony-level crime. These individuals have their cases heard in the Youth Part of Criminal Court.”  

² A nonjudicial employee of the Unified Court System may need to obtain prior written administrative approval to hold both positions (see 22 NYCRR 50.3[a]). For guidance on Part 50, court personnel may consult the Office of Court Administration’s Nonjudicial Ethics Helpline (888-283-8442).