Opinion 22-193

February 2, 2023

Digest:         (1) A part-time town justice may appear as assigned counsel in another county, or before non-lawyer judges or full-time judges in the same county, and may submit vouchers for assigned counsel work already completed.

(2) While the judge has pending assignments or unpaid vouchers in assigned counsel cases, the judge is disqualified, subject to remittal, when the assigned counsel administrator appears in the judge’s court.

(3) During this period, if the assigned counsel administrator’s law partner has a financial interest in the assigned counsel cases, then the judge is disqualified, subject to remittal, in matters involving the law partner. Conversely, if the assigned counsel administrator’s law partner has no financial interest in the administrator’s income from their work as assigned counsel administrator, the judge may preside when the law partner appears.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(E)(1); 100.3(E)(1)(c); 100.3(E)(1)(d)(iii); 100.3(F); 100.6(B)(2); Opinions 22-86; 21-22(A); 20-172; 18-81; 17-141; 16-137; 14-82; 12-182; 12-77; 09-178; 04-40; 99-97; 96-120; 91-86.

Opinion:

         The inquiring part-time attorney judge has several assigned counsel matters pending before full-time judges or non-attorney part-time judges in the same county where the judge presides, as well as additional assigned counsel cases that have been completed but for which the judge has not yet billed.¹ The county’s part-time assigned counsel administrator is a practicing attorney who occasionally appears in the judge’s court. The administrator’s law partner is unaffiliated with the assigned counsel program and appears more frequently in the judge’s court. The judge asks if it is ethically permissible to (1) complete the pending assignments and submit vouchers for the completed work and (2) preside in cases involving the assigned counsel administrator and the administrator’s law partner.

         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 judge’s judicial duties take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]). A part-time judge may practice law, although not before any part-time attorney judge in the same county nor before any judge in the judge’s own court (see 22 NYCRR 100.6[B][2]). A judge must disqualify when the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including in matters where the judge has an “interest that could be substantially affected by the proceeding” (22 NYCRR 100.3[E][1][c]; 100.3[E][1][d][iii]).

         We have said a part-time lawyer judge may accept 18-B assignments within the same county before both full-time judges and non-lawyer part-time judges, except those in the judge’s own court (see Opinions 20-172; 18-81; 17-141; 16-137; 12-77; 04-40; 99-97; 96-120; 91-86). Therefore, the judge may ethically continue to represent assigned counsel clients. The judge may also submit vouchers for both pending and completed cases, both because it is permissible to accept new assigned counsel cases and because billing for completed legal work is a ministerial act that even full-time judges may undertake after ceasing the practice of law (see e.g. Opinion 22-86 [“A new full-time judge may submit vouchers for legal fees earned for work performed as assigned counsel prior to assuming the bench”]).

         Although the inquiry does not describe in detail the role and responsibilities of the assigned counsel administrator, we are aware of three significant functions that the public might ordinarily expect such individuals to perform. Depending on how the office is structured, the administrator may have a role in (1) reviewing and approving payment vouchers (see Opinions 17-141; 09-178), (2) assigning 18-B cases to specific attorneys (see Opinion 09-178), and/or (3) evaluating the performance of 18-B attorneys (see Opinion 18-81). In our view, each of these functions is likely to create, at the very least, an appearance that the actions and decisions of the administrator will have a financial impact on a part-time attorney judge whose law practice includes assigned counsel cases.

         Therefore, as long as this judge has pending assignments or unpaid vouchers in assigned counsel cases, we conclude that the judge’s impartiality might reasonably be questioned when the assigned counsel administrator appears before the judge (see 22 NYCRR 100.3[E][1][c]; 100.3[E][1][d][iii]). Accordingly, the inquiring judge is disqualified from matters in which the part-time assigned counsel administrator appears as an attorney until the judge’s assigned counsel matters are fully concluded, including payment. Disqualification on this ground is subject to remittal and, as always, requires full disclosure and the affirmative consent of the parties and their counsel (see Opinion 21-22[A] [describing the remittal process]; 22 NYCRR 100.3[F]).

         With respect to the assigned counsel administrator’s law partner, we start from the inquiring judge’s representation that the law partner is completely unaffiliated with the assigned counsel program. This fact is not necessarily determinative, however, because members of a law firm may have a financial interest in each other’s income from outside legal work (see e.g. Opinion 12-182 [partners share profits without distinguishing the origin of the funds] with Opinion 14-82 [partners will not share fees from their outside work with an indigent defense firm]).

         In our view, if the law partner has a financial interest in the assigned counsel cases, then the judge is likewise disqualified, subject to remittal, in matters involving the law partner as long as this judge has pending assignments or unpaid vouchers in assigned counsel cases (see generally 22 NYCRR 100.3[E][1]). Again, remittal of disqualification requires full disclosure and the affirmative consent of the parties and their counsel (see Opinion 21-22[A] [remittal process]; 22 NYCRR 100.3[F]).

         Conversely, if the assigned counsel administrator’s law partner has no financial interest in the administrator’s income from their work as assigned counsel administrator, then the judge’s impartiality cannot “reasonably be questioned” in matters involving the law partner (22 NYCRR 100.3[E][1] [emphasis added]) and therefore disclosure and disqualification will be entirely within the inquiring judge’s discretion.

_____________________________

¹ The judge is restructuring their law practice to minimize the risk of conflicts, and does not plan to take on additional in-county assigned counsel cases.