Opinion 20-28

March 19, 2020

Digest:         A part-time lawyer judge may not serve as part-time assistant counsel for the Division of Criminal Justice Services.

Rules:          CPL 160.20; 160.30; 22 NYCRR 100.2; 100.2(A); 100.6(B)(1)-(4); Opinion 16-32.

Opinion:

         A part-time lawyer judge and an administrative judge jointly ask if the part-time judge may simultaneously serve as a part-time assistant counsel for the Division of Criminal Justice Services. The judge would not handle matters for the agency’s office of public safety. Instead, such responsibilities would be handled by the General Counsel or other attorneys not subject to the judge’s supervision. The agency’s legal department “provides legal counsel to the agency and offers a wide range of services to law enforcement agencies and prosecutor offices across the state.” The agency describes its overall mission as follows:

DCJS enhances public safety by providing resources and services that inform decision making and improve the quality of the criminal justice system. The agency provides direct training to law enforcement and other criminal justice professionals; oversees a law enforcement accreditation program; ensures Breathalyzer and speed enforcement equipment used by local law enforcement operate correctly; manages criminal justice grant funds; analyzes statewide crime and program data; provides research support; oversees county probation departments and alternatives to incarceration programs; and coordinates juvenile justice policy. DCJS maintains criminal history records and fingerprint files and performs background checks for employment and licensure. The agency also administers the state’s Sex Offender Registry; the Missing Persons Clearinghouse; the state’s DNA Databank in cooperation with the New York State Police Forensic Investigation Center; and provides staff support to independently appointed commissions and councils, including the New York State Commission on Forensic Science, which monitors and accredits the state’s forensic laboratories.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and 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 (see 22 NYCRR 100.6[B][1]-[3]) and may accept public employment if compatible with judicial office and if it does not interfere with the proper performance of the judge’s duties (see 22 NYCRR 100.6[B][4]).

         In Opinion 16-32, we said a part-time city court judge who presides over arraignments and other criminal cases may not serve as sheriff’s office part-time in-house counsel. As we explained there (id. [footnote omitted]):

Although the inquiring judge’s in-house counsel role at the sheriff’s office is limited to transactional work and the sheriff’s office seldom appears in the judge’s court, it is nonetheless in the same county as the judge’s court. From a reasonable layperson’s perspective, a judge who represents law enforcement interests as an in-house attorney, in the very same county where the judge presides, will be perceived as too closely aligned with law enforcement interests. The Committee believes, if this judge were to continue on the local county sheriff’s payroll as part-time in-house counsel, the judge’s association with law enforcement within the court’s jurisdiction, in his/her capacity as an attorney, would create an appearance of impropriety, incompatible with holding judicial office.

         Here, the judge would serve as part-time counsel to an agency whose legal department “offers a wide range of services to law enforcement agencies and prosecutor offices across the state.” Indeed, the agency’s detailed description of its mission, as quoted above, only emphasizes its law enforcement orientation. Even if the judge would not handle matters involving the agency’s office of public safety, the agency itself puts “enhanc[ing] public safety” front and center in its mission statement. The agency’s responsibility to maintain criminal history records gives it a prominent role in the booking process for arrestees and defendants (see CPL 160.20; 160.30). Moreover, the agency oversees law enforcement training programs and ensures that law enforcement equipment operates correctly, both of which can be key issues for criminal defendants. Indeed, the agency’s mission statement explicitly mentions law enforcement four times and never mentions defense interests at all.

         In sum, we believe the proposed employment is “too closely aligned with law enforcement interests” throughout the state, including in the part-time judge’s county (Opinion 16-32). As the position of part-time assistant counsel position with DCJS is ethically incompatible with judicial office, the judge must choose between the positions.