Opinion 21-60

April 29, 2021

Digest:       A part-time lawyer judge may serve as an assistant public defender in another county, but must not preside in any matter where another attorney from the same public defender’s office appears.

Rules:        Judiciary Law §§ 16; 471; 22 NYCRR 100.2; 100.2(A); 100.6(B)(2)-(4); Opinions 17-02; 95-81.

Opinion:

         A part-time attorney judge asks if it is permissible to serve as an assistant public defender in another county.

         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]). A part-time judge may accept public employment in a state or municipal department or agency, if it is not incompatible with judicial office and does not conflict or interfere with proper performance of judicial duties (see 22 NYCRR 100.6[B][4]). A part-time lawyer judge must not practice law in the court in which they are a judge (see 22 NYCRR 100.6[B][2]; Judiciary Law § 16), in any matter “originating in that court” (Judiciary Law § 16), nor in any other court in the same county before another part-time judge who is permitted to practice law (see 22 NYCRR 100.6[B][2]). The judge also must not permit their partners or associates to practice law before any judge of the court in which the judge serves (see 22 NYCRR 100.6[B][3]; see also Judiciary Law § 471).

         A part-time lawyer judge may serve as a public defender in another county, but is prohibited from presiding over any matters handled by other attorneys from that public defender’s office (see Opinion 95-81; see also Opinion 17-02 [legal aid in another county]). The conflict “may not be waived” (see Opinion 95-81).