Opinion 20-12

January 30, 2020

Digest:         When a part-time city court judge appears before a full-time judge as an attorney on behalf of a client, the Rules Governing Judicial Conduct do not prohibit him/her from asking the court to direct a city marshal, rather than the county sheriff, to execute a warrant of eviction.

Rules:          Judiciary Law § 16; RPAPL § 749(1); 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(G); 100.6(B)(1)-(2), (4); Opinions 12-77; 11-120; 06-178; 92-35.

Opinion:

         The inquiring part-time city court judge is also a practicing attorney. As such, he/she represents certain landlord clients seeking warrants of eviction under RPAPL § 749(1), which may be “directed to the sheriff of the county or to any constable or marshal of the city in which the property, or a portion thereof, is situated.” Before assuming the bench, the judge routinely requested warrants to be directed to the city marshal, rather than the county sheriff. The judge asks if he/she may continue to make this same request on behalf of clients, in a court with no part-time judges, now that he/she is a part-time city court judge.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must not lend judicial prestige to advance any private interests (see 22 NYCRR 100.2[C]). A part-time lawyer judge may nonetheless practice law, subject to limitations (see 22 NYCRR 100.6[B][1]; 100.4[G]). For example, he/she may not practice before another part-time lawyer judge in the same county (see 22 NYCRR 100.6[B][2]) and may not act as an attorney in any matter originating in his/her court (see Judiciary Law § 16; 22 NYCRR 100.6[B][2]). Also, any outside employment must not be “incompatible with judicial office” and must not “conflict or interfere with the proper performance of the judge’s duties” (22 NYCRR 100.6[B][4]).

         Although a part-time lawyer judge “may not lend the prestige of judicial office to advance his/her own private interests or those of his/her legal clients” (Opinion 11-120), he/she may practice law before a full-time judge (see e.g. Opinions 12-77; 92-35). We see no reason to prohibit this judge from applying for a judgment of eviction and a warrant of eviction before a full-time judge in another court on behalf of his/her client.

         Nor do we see any inherent impropriety in the judge’s exercise of his/her professional discretion as an attorney on behalf of a client concerning which of several lawful officials should be directed to remove all persons and put his/her client in possession of the premises. As we previously noted, a city marshal “is an independent officer whose powers are created by statute and who exercises a high degree of independent judgment” (Opinion 06-178). Nothing herein suggests a special relationship between a city court judge and a city marshal to create an appearance the judge is lending the prestige of judicial office to advance his/her clients’ cause (see 22 NYCRR 100.2[C]), or otherwise conflict or interfere with the proper performance of the judge’s judicial duties (see 22 NYCRR 100.6[B][4]).

         Thus, when a part-time city judge appears before a full-time judge representing a client, the Rules Governing Judicial Conduct allow the lawyer/judge to ask the court to direct a city marshal, rather than the county sheriff, to execute an eviction warrant.