Opinion 21-178

December 2, 2021

Digest:        A town justice may not simultaneously serve as the director of a non-profit civil legal services agency where the judge’s responsibilities include overseeing attorneys and advocates who are likely to appear in the judge’s court in summary eviction proceedings.

Rules:          Judiciary Law § 471; 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(B); 100.6(B)(1)-(5); Opinions 14-136; 09-47(A).

Opinion:

         A sitting town justice and a judge-elect who will serve on the same court ask about their obligations in certain summary eviction proceedings once the judge-elect assumes judicial office. The judge-elect is the Director of Advocacy for a non-profit civil legal services agency that provides services in the region, including the county in which the judges preside. The organization is the primary agency providing tenant representation in justice courts. The judge-elect (i) oversees attorneys and advocates at the agency and is responsible for their training, (ii) consults on legal strategy for major litigation, and (iii) assists the executive director in administering the agency, but (iv) does not have responsibility for handling cases or providing daily supervision of the attorneys and advocates. The judges asks if it will be sufficient for the judge-elect to “exercise recusal on any case in which an agency attorney appears in a summary proceeding and ask that the case be reassigned” to their co-judge.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2 [A]). Although a judge’s judicial duties must take precedence over all the judge’s activities (see 22 NYCRR 100.3[A]), a part-time judge may engage in public or private employment, including the practice of law, subject to certain limitations (see generally 22 NYCRR 100.6[B][1]-[5]). For example, the judge’s employment must not be incompatible with judicial office and must not conflict or interfere with the proper performance of the judge’s duties (see 22 NYCRR 100.6[B][4]). Of particular relevance here, a judge “shall not permit his or her partners or associates to practice law in the court in which he or she is a judge, and shall not permit the practice of law in his or her court by the law partners or associates of another judge of the same court who is permitted to practice law” (22 NYCRR 100.6[B][3]; cf. Judiciary Law § 471).

         Thus, the question before us is whether the agency attorneys are “partners or associates” of the judge-elect within the meaning of Section 100.6(B)(3). We have construed the term “associate” in Section 100.3(B)(3) more broadly than the traditional notion of a law firm associate (see Opinion 14-136). Our key concern in situations such as this, is whether the attorney’s relationship to a judge of a court can “reasonably be perceived as affording that attorney an inappropriate advantage before any judge of that court” (id., quoting Opinion 09-47[A]).

         Critically, we have already concluded that staff attorneys at a Legal Aid office are “‘associates’ for the purposes of Section 100.6(B)(3)” (Opinion 14-136). We see nothing in the present inquiry to suggest a different outcome where, as here, the judge-elect serves in a general supervisory role over other agency attorneys, trains them, consults on litigation strategy, and assists the executive director in administering the agency. These ongoing high-level responsibilities and the relationship between the judge-elect and the agency attorneys could raise questions of bias or improper alignment with the defense in eviction proceedings, since the agency attorneys will be appearing on behalf of tenants in eviction proceedings in the town court.

          Because the agency attorneys must be deemed “associates” of the judge-elect within the meaning of Section 100.6(B)(3), if the judge-elect were to maintain their present employment with the agency, both judges would need to disqualify themselves from all matters where these attorneys appear. Thus, the judges’ proposed procedure is impermissible.

         Moreover, on the facts presented, it appears that the judge-elect’s continued employment with Legal Aid would unduly disrupt court operations, as the inquiry characterizes Legal Aid as the primary agency providing representation in the town court on eviction matters. If so, we conclude the judge-elect may not simultaneously hold both positions (see Opinion 14-136).