Opinion 21-143

September 9, 2021

Digest:       A part-time attorney judge may not represent a police benevolent association, whether in a non-adjoining town in the same county or in a village in another county, as an appearance of impropriety would be created, based on a perception that the judge is too closely aligned with law enforcement interests.

Rules:        22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(G); 100.6(B)(1)-(4); Opinions 20-95; 16-32; 09-78; 09-19; 98-153; 95-157; 93-110; 91-29.

Opinion:

       A part-time attorney judge asks if it is permissible to represent (1) a police benevolent association for town police officers of a non-adjoining town in the same county and (2) a police benevolent association for village police officers in another county. The judge explains that the PBAs are unions whose members are “extremely unlikely” to appear in the judge’s court. While members of the PBA within the judge’s county could appear before the judge in the county’s centralized arraignment part, the judge notes that a standby alternate judge would be available if the judge is disqualified. The judge also outlined in detail the kinds of duties the judge would undertake, on an ongoing, as-needed basis, if permitted to represent the PBAs.¹

       A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Unlike full-time judges, part-time attorney judges are permitted to practice law (see 22 NYCRR 100.4[G]; 100.6[B][1]-[3]) and may accept private employment which is not incompatible with judicial office, and which does not conflict or interfere with the proper performance of the judge’s duties (see 22 NYCRR 100.6[B][4]). However, such outside employment or legal practice is subject to limitation because a judge’s judicial duties “take precedence over all the judge’s other activities” (see 22 NYCRR 100.3[A]).

       A part-time judge may allow their law firm to represent a deputy sheriffs’ association in a different county in a labor dispute before the American Arbitration Association pursuant to a collective bargaining agreement (see Opinion 95-157), but a judge may not undertake similar representations in the judge’s own county and may not even remain a member of a law firm that represents the local sheriffs’ association (see Opinion 98-153 [finding an appearance of impropriety]).

       Notwithstanding the one-time representation permitted outside the judge’s own county in Opinion 95-157, we have repeatedly advised that a judge “must strive to avoid not only the reality, but also the appearance, that he/she is aligned in interest with law enforcement” in the judge’s extra-judicial activities (Opinion 20-95 [citation omitted]). Thus, although a part-time attorney judge may represent an individual, local police officer (see e.g. Opinions 09-78; 09-19), we said a part-time judge must not serve as legal counsel to a police chiefs’ association (see Opinion 93-110), or as pro bono counsel to an association of police officers (see Opinion 91-29). We concluded such employment is incompatible with judicial office because of the public perception of partiality (see Opinions 93-110; 91-29). Significantly, in these opinions involving a standing or ongoing representation, we provided no geographical limitation to this principle (see id.). Likewise, we advised that a part-time city court judge who presides over arraignments and other criminal cases may not serve as part-time in-house counsel doing solely administrative tasks in the county where the judge presides (see Opinion 16-32).

       More recently, we advised that a part-time judge may not serve as a business agent for a correction officers’ union (see Opinion 20-95). As we explained (id. [citations and footnote omitted]):

As we understand it, serving as business agent for a correction officers’ union involves representation of correction officers’ interests to management, the public, and/or unspecified third parties with whom the union does business. As correction officers have peace officer status under the Criminal Procedure Law, we believe the business agent role will be perceived as too closely aligned with law enforcement interests and is thus incompatible with judicial office.

         Accordingly, we conclude the judge must not represent a police benevolent association for town police officers in the same county, even where it is extremely unlikely that any member of the PBA would appear in the judge’s court, as it would create an appearance of impropriety, based upon a perception that the judge is too closely aligned with law enforcement interests (see e.g. Opinions 20-95; 16-32; 98-153). Likewise, the judge may not represent a PBA for village police officers in another county, as this ongoing employment relationship would still undermine public confidence in the judge’s impartiality regardless of where it takes place (see e.g. Opinions 20-95; 98-153; 93-110; 91-29).

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¹ The judge would primarily represent the membership in labor relations matters, such as negotiating collective bargaining agreements or representing the union before a PERB mediator or arbitrator. The judge’s duties could also include “representing the membership if there is a grievance against the municipality” (e.g. preparing the grievance, attending labor/management meetings, and appealing denials of the grievance); reviewing new policies and advising whether they impermissibly change a working condition; and representing a member officer in a disciplinary interview, in negotiating a resolution, or representing them at a disciplinary hearing. If an officer member were involved in a matter which could result in potential criminal charges, the judge “would assist the PBA in obtaining competent criminal defense counsel.”