Opinion 22-135

September 8, 2022

Digest:       A part-time judge, who also serves as a deputy town attorney for another town, may not in their role as town attorney assist the town police department in seeking Extreme Risk Protection Orders.

Rules:        22 NYCRR 100.2; 100.2(A); 100.6(B)(1)-(4); Opinions 22-35; 21-143; 20-95; 20-28; 20-04; 17-173; 17-36; 16-175; 14-28; 12-183; 09-78; 09-19; 06-98.

Opinion:

         A part-time village judge, who also serves as a deputy town attorney for another town in the same county, asks if it is ethically permissible for the judge in their role as town attorney to assist the town police department in seeking Extreme Risk Protection Orders (ERPO) before full-time judges in Supreme Court. As explained on the Unified Court System’s website, the purpose of an ERPO is to “keep guns away from people who are at a high risk of using them to hurt other people or themselves.”¹ An ERPO can order someone to not possess or buy firearms, rifles or shotguns or to relinquish them. A judge may issue an ERPO based on an application by police officers, district attorneys, family or household members or school administrators, and we note that ERPO petitions often accompany criminal charges.

         A judge must always avoid even the appearance of impropriety and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 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]).

         We have advised that a part-time judge may serve as town or village attorney for another municipality, provided the judge has no prosecutorial responsibilities (see e.g. Opinions 17-36; 14-28). In general, they may practice before full-time judges in the same county (see e.g. Opinions 14-28; 12-183), and may represent individual police officers as clients (see e.g. Opinions 16-175; 09-78; 09-19).

         Nonetheless, 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 [citations omitted]). Whether a specific outside employment is “too closely aligned with law enforcement interests” must be viewed from a reasonable layperson’s perspective (see Opinions 20-04; 17-173). In this regard, we have advised that certain positions proposed by part-time judges were too closely aligned with law enforcement interests and were therefore incompatible with judicial office (see e.g. Opinions 21-143 [outside counsel for a police benevolent association]; 20-95 [business agent for a correction officers’ union]; 20-28 [assistant counsel for the Division of Criminal Justice Services]).

          The closely related prohibition on part-time judges undertaking quasi-prosecutorial duties also extends to matters that, “while legally cast in a civil context, [have] many aspects of a quasi-criminal proceeding” (Opinions 22-35 [assistant attorney general handling petitions for civil management of recidivist sex offenders under the Sex Offender Management and Treatment Act]; 06-98 [assistant county attorney handling juvenile delinquency or persons-in-need-of supervision cases]). Where juvenile delinquency and persons-in-need-of-supervision cases may involve outcomes such as “custody, detention, placement and related questions that are akin to possible issues in criminal proceedings” (Opinion 06-98) and civil confinement cases may involve either confinement or “strict and intensive supervision and treatment” (Opinion 22-35), a government attorney prosecuting such matters “advocates restrictions on [a] respondent’s freedom and constitutional rights” (id.).

         Given that ERPO petitions often accompany criminal charges and an attorney seeking an ERPO is necessarily “advocat[ing] restrictions on the respondent’s ... constitutional rights” (Opinion 22-35), they can readily be seen as quasi-prosecutorial in nature. We therefore conclude that assisting the town police department with ERPO’s would be too closely aligned with law enforcement interests and would create an appearance of impropriety and public perception of partiality incompatible with judicial office.

          Accordingly, the inquiring judge, in their role as deputy town attorney, may not assist the town police department in seeking Extreme Risk Protection Orders.

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¹ https://nycourts.gov/CourtHelp/Safety/ERPOindex.shtml