Opinion 20-123

September 10, 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 legal assistant at the appeals and opinions bureau of the attorney general’s office.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(E)(1)(b)(i); 100.6(B)(2); 100.6(B)(4); Opinions 20-73; 09-03; 01-87; 97-126; 95-81.

Opinion:

         A non-attorney employee of the attorney general’s office asks if he/she may continue employment as a legal assistant¹ on assuming part-time judicial office in a town court. The inquirer works in the appeals and opinions bureau and primarily drafts respondent’s briefs for Article 78 cases brought by pro se inmates.² The inquirer notes the attorney general’s office may represent police officers or employees from the department of environmental conservation or department of transportation in both litigation and claims cases.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote 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” (22 NYCRR 100.3[A]). Thus, a part-time judge may only accept public employment if it “is not incompatible with judicial office and does not conflict or interfere with the proper performance of judicial duties” (22 NYCRR 100.6[B][4]). A judge must also disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]) or in other circumstances as required by rule or by law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14), including when the judge knows he/she previously served as a lawyer in the matter in controversy (see 22 NYCRR 100.3[E][1][b][i]).

         Where, as here, the proposed concurrent public employment does not involve law enforcement or prosecutorial functions and is not likely to involve the judge with persons or agencies that regularly appear before the judge, it is often permissible. For example, we said a part-time judge may serve as an investigator for a public defender’s office in another county (see Opinion 01-87) or even as a public defender in another county (see Opinion 95-81). We also said a part-time judge may serve as Deputy Counsel to the New York State Higher Education Services Corporation, as the duties of that office did “not appear to conflict or interfere with the proper performance of the duties of” a town justice (Opinion 97-126). However, if a matter involving the Higher Education Services Corporation came before the town judge, he/she must disqualify him/herself (see id.).

         On these facts, we see no ethical incompatibility between the position of town justice and that of a legal assistant at the appeals and opinions bureau of the attorney general’s office. While it seems unlikely that a specific case the inquirer worked on as a legal assistant in the appeals and opinions bureau will subsequently come before the town court, the inquirer must disqualify him/herself if that should happen (cf. 22 NYCRR 100.3[E][1][b][i]). In addition, the inquirer must disqualify him/herself if a police officer or other witness in the town court was his/her “client” in a case he/she handled at the appeals and opinions bureau.³ Assuming the inquirer can be fair and impartial, and no party is appearing without counsel, this disqualification is subject to remittal after full disclosure on the record (cf. Opinion 20-73 [judge who previously served as a Legal Aid attorney is disqualified for two years, subject to remittal, in cases involving his/her former clients]).

         We cannot address any legal issues the inquirer may encounter at the attorney general’s office, should he/she be asked to participate as a legal assistant in a matter in which he/she previously served as a judge (cf. 22 NYCRR 100.6[B][2] [part-time judge must not “act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto”]).⁴

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¹ We understand from the title standards that the inquirer “independently performs the most complex paralegal work, including legal research in areas where clear precedent may not be found” and “analyzes information gathered with minimal direction from attorneys.”

² Presumably, the Article 78 cases are heard exclusively by full-time judges.

³ While the inquirer is a legal assistant, rather than an attorney, if he/she drafts the respondent’s brief in an article 78 proceeding where the attorney general’s office is representing a police officer, we believe that police officer should be treated as the inquirer’s “client” for purposes of disqualification and remittal (cf. Opinion 09-03 [part-time judge who is not a lawyer, but who represents landlords in court proceedings pursuant to a Power of Attorney and also advises and assists “clients” about eviction proceedings, is subject to the same restrictions applicable to lawyer judges]).

⁴ Conceivably, the inquirer could be asked to prepare a respondent’s brief in an article 78 proceeding, where the very earliest stages of the inmate’s underlying criminal case (an arraignment or initial felony hearing) were heard in the town court. We imagine this would happen rarely, if ever.