Opinion 20-64

June 26, 2020

Dear :

         We respond to your inquiry (20-64) asking if you, a part-time lawyer judge, may (1) practice law before a non-lawyer judge in another town or village of the same county; (2) practice law in County Court or Supreme Court; (3) as a full-time college professor, comment on cases, regulations, or politics; or (4) accept full-time employment as chief clerk of the County Court.

         1-2. Practice of Law. A part-time lawyer judge may not practice law in his/her own court (see 22 NYCRR 100.6[B][2]) or in any matter originating in his/her own court (see Opinion 12-173).

         However, a part-time lawyer judge may practice law before a non-lawyer judge in another town or village justice court of the same county. If a particular justice court has both a lawyer judge and a non-lawyer judge, the judge may participate in the case only if it is assigned to the non-lawyer judge at the outset. (Once a case has been initially assigned to a lawyer judge, it is not ethically permissible to request a transfer.)

         A part-time lawyer judge may practice law before the County Court or Supreme Court, as the judges in these courts are full-time judges who are not permitted to practice law.

         We attach for your review Opinions 14-57, 09-06, 08-178, 91-86, and 90-23 (Q1); Opinions 12-77, 04-40, 92-35, 90-82, and 88-135 (Q2); and Opinion 12-173 (both Q1 and Q2).

         3. College Professor. A judge may teach courses at a college or law school, subject to generally applicable limitations on judicial speech and conduct (see 22 NYCRR 100.4[B]).

         Cases. A judge must not comment on “pending or impending” cases in any court within the United States or its territories, unless an exception applies (22 NYCRR 100.3[B][8]). Notably, a case is “pending or impending” under the ethics rules at least until the time for appeals has been exhausted, and often longer. However, a “well-established but very narrow exception to the public comment rule” applies to college professors (Opinion 20-31). Specifically, “when a judge is teaching a regular course of study at a law school or college,” he/she may “comment in the classroom on a pending or impending case arising in another jurisdiction” (id.). Please note the exception “does not permit comment on pending or impending cases arising in that judge’s court or in a court within the judge’s jurisdiction” (id.).

         We attach for your review Opinions 20-31, 13-82, 12-126, 10-189, and 95-105.

         Regulations. We believe a judge may comment on regulations in his/her capacity as a college professor teaching a course on law or business ethics (cf. 22 NYCRR 100.4[B]; Opinion 17-148). Of course, as at all times, you must not make comments that will cast reasonable doubt on your ability to be fair and impartial as a judge.

         We attach for your review Opinion 17-148.

         Politics. A judge must not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A][1]). Applying this rule, we said a part-time judge may be employed full-time as a news reporter, but still may not cover politically sponsored events (see Opinion 11-100). Nor may a judge who served in the armed forces overseas “write or join an article or editorial on issues of substantial public controversy involving American foreign policy and military operations” (Opinion 19-106). Indeed, a judge may not even engage anonymously in otherwise prohibited political activity, such as publishing partisan political literature (see Opinion 16-85). As there is no exception applicable to judges who serve as college professors, we conclude you must not comment on politics in the classroom or elsewhere.

         We attach for your review Opinions 19-106, 16-85, and 11-100.

         4. Employment as Chief Clerk of the County Court. A part-time judge may serve as chief clerk of the County Court, but must be insulated in County Court from involvement in matters (a) appealed from the town court or (b) in which any judge of his/her town court exercised preliminary jurisdiction.

         We attach for your review Opinions 19-71, 16-162, 08-172, and 03-99.¹

                                              Very truly yours,

                                              George D. Marlow, Assoc Justice                                                                       Appellate Div., First Dept. (Ret)

                                              Committee Co-Chair

                                              Hon. Margaret T. Walsh

                                              Supreme Court Justice

                                              Committee Co-Chair

Encls.

 ________________________

¹ If the judge becomes a full-time court employee in County Court, we assume he/she could not continue to practice law nor maintain a second full-time position as a college professor. However, the judge may consult the Office of Court Administration’s Nonjudicial Ethics Helpline (888-283-8442) for guidance on his/her obligations under Part 50 (22 NYCRR 50).