Opinion 23-130

December 14, 2023

Digest: (1) Subject to certain limitations, a part-time lawyer judge may serve as an assistant county attorney in the General Legal Services division, providing legal advice and services to the county clerk, to the board of elections, and on insurance matters, public health matters, purchasing, and real estate transactions.  

            (2) The judge may not handle prosecutorial or quasi-prosecutorial matters; may not represent the public safety and communications departments, district attorney, public defender, conflict defender, assigned counsel program, sheriff’s office, probation department, first responders, crime lab, or mental health department including Kendra’s Law proceedings; and may not represent the health department with respect to adolescent tobacco law enforcement and health code violations.

Rules:   County Law § 411; Judiciary Law § 471; Town Law § 20(4); 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.5(A)(1); 100.5(B); 100.6(B)(2)-(4); Opinions 23-109; 22-35; 21-84; 20-28; 19-160; 18-77; 18-50; 17-183; 17-160; 10-200/11-74; 09-238; 09-91; 09-36; 01-127; 00-04; 96-92; 91-153; 89-85; 88-148; 88-05.

Opinion:

          The inquiring part-time lawyer judge asks if it is ethically permissible to serve as an assistant county attorney in the general legal services division in the local County Attorney’s office.  Attorneys in this division may be assigned to act as in-house counsel to various county officials and agencies, including public safety (emergency management, first responder agencies, central police/crime lab/public safety communications services, conflict defender, judicial system support, probation, district attorney), mental health, public health and safety/sanitary code enforcement, sheriff, public defender, county clerk, insurance, board of elections, department of public health, and purchasing.  The division is also responsible for all real property transactions involving the county.  As there is a wide range of possible assignments, the judge specifically asks about the compatibility of each role with part-time judicial office.

          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]).  A part-time attorney judge may engage in the practice of law, subject to limitations (see 22 NYCRR 100.6[B][2]-[3]; Judiciary Law § 471) and may accept “public employment in a federal, state or municipal department or agency, provided that such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties” (22 NYCRR 100.6[B][4]).  A judge’s judicial duties take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]).

          We have advised that a town justice who is allowed to practice law “generally may serve as a county attorney or assistant county attorney, provided the position does not involve prosecutorial or quasi-prosecutorial duties and is fully insulated from all matters involving the district attorney’s office and the sheriff’s office” (Opinion 23-109; see also Opinion 19-160).  The current inquiry, however, requires us to consider an extensively detailed account of a wide range of potential assignments of an assistant county attorney in the general legal services division, so that the inquiring judge and his/her employer can determine the judge’s scope of work as an assistant county attorney.

1. Prosecutorial and Quasi-Prosecutorial Matters; County Agencies that Regularly Appear in the Judge’s Court

          A part-time judge may not accept employment which involves prosecutorial or quasi-prosecutorial duties, including as an assistant county attorney tasked with prosecuting juvenile delinquency and persons-in-need-of-supervision matters (see Opinions 19-160; 18-50; 17-183).  A part-time judge also may not serve as counsel for the district attorney, public defender, conflict defender, and sheriff’s office, all of whom would regularly appear in the judge’s court (see Opinions 23-109; 19-160; 18-50).  We have explained that such specific employment responsibilities to these agencies would necessarily require disqualification from all matters involving these institutional clients (see Opinion 18-50).  For a town judge, this would require recusal in a very significant percentage of the court’s caseload, thus interfering with the judge’s ability to perform his/her/their judicial duties” (see id.).  In addition, from a layperson’s perspective, a judge who represents law enforcement interests as an in-house attorney, in the same county where the judge presides, will be perceived as too closely aligned with law enforcement interests (see Opinion 20-28). 

          We extend our reasoning to any agency that might routinely be involved in, appear, and participate in proceedings in the judge’s court, including the probation department (preparation of pre-sentence reports, violation of probation proceedings), assigned counsel office/administrator, mental health (CPL 730/competency exams), first responders, emergency and public safety communications including a 911 call center, emergency management services, and crime laboratory services.

          The inquiring judge has asked if he/she may represent the Office of Mental Health/Assisted Outpatient Treatment in Kendra’s Law matters as an assistant county attorney by “filing and monitoring special proceedings in Supreme Court seeking court orders mandating medication for mentally ill persons” in the county “who present a danger to themselves or others.”  In Opinion 22-35, we said a part-time judge may not serve as an assistant attorney general handling petitions for civil management of recidivist sex offenders under the Sex Offender Management and Treatment Act in Supreme Court as such a position would involve matters concerned with “custody, detention, placement and related questions that are akin to issues in criminal proceedings” and/or extended government supervision.  Kendra’s Law applications often involve law enforcement and are generally perceived by the public as prosecutorial or, at least quasi-prosecutorial in nature.  As with the other law enforcement interest areas outlined above, it is the “reasonable layperson’s perspective” analysis that controls.  Therefore, the inquiring judge may not represent the Office of Mental Health in Kendra’s Law proceedings.

          The inquiring judge also asks if he/she may be assigned to represent county health department enforcement personnel in administrative hearings “against businesses selling tobacco to minors and businesses found to have health code violations on their premises.”  We have advised that code enforcement positions and adolescent tobacco use prevention act enforcement activities for a county department of health are ethically incompatible with judicial office (see Opinions 09-238 [ATUPA enforcement]; 00-04 [building code enforcement]).  Based on these prior opinions, and the quasi-prosecutorial nature of the role, representation of department of health personnel in this capacity is likewise impermissible (see id.). 

2.  Non-Prosecutorial Matters

a. Advisor to the County Clerk

          The inquiry describes the duties of counsel to the county clerk as advising the clerk on compliance matters in connection with the clerk’s duties; drafting, reviewing and approving contracts; and assisting with employment issues.  No duties related to litigation are described.  Generally, the county clerk is responsible for filing and maintaining official records (including Supreme and County Court records) and acting as an agent of the federal and state governments for passports, pistol permits, sporting licenses, and motor vehicle transactions. 

          We have said a town justice is prohibited from serving as the town clerk or a deputy town clerk in the same town (see Opinions 01-127; 96-92).  We have also said that a town justice may serve as the deputy county clerk in charge of motor vehicle operations, where he/she will oversee “reissuing of New York registration plates and operators’ licenses,” unless he/she is called upon to assume the powers of the County Clerk (Opinion 88-05).  These prohibitions stem from incompatible statutory powers or functions in the nonjudicial role and/or from statutory prohibitions (e.g. Town Law § 20[4] [no person may hold more than one elective town office]; County Law § 411 [county clerk may not hold an elective town office]; cf. 22 NYCRR 100.5[B] [“resign to run” rule]).

          Conversely, we see no ethical incompatibility between the office of town justice and the role of serving as legal advisor to the county clerk.  Therefore, the inquiring part-time lawyer judge may serve as counsel to the county clerk.

b. Manager of Insurance Policies

          We have advised that a town justice may be employed as an account manager in the insurance field and as an insurance broker, provided the judge is not involved in any matters concerning his/her town and the employment does not interfere with the judge’s performance of judicial duties (see Opinions 17-160; 09-36). 

          The same principles apply here.  We conclude the inquiring judge may, as an assistant county attorney, monitor and handle the placement and renewal of supplemental insurance policies for the county.  Such types of activities involve risk management, contract negotiation and claims activities which are ethically compatible with judicial office. 

c. Counsel to the Board of Elections

          We have advised that a part-time judge may serve as a non-partisan hearing officer for the state board of elections to conduct civil enforcement hearings, where it would not conflict or interfere with proper performance of the judge’s judicial duties (see Opinion 21-84).  In reaching this conclusion, we observed that a part-time judge is not necessarily prohibited from “accepting employment in matters involving elections,” where the judge’s role “is clearly that of a lawyer” and the judge “is being compensated as an attorney” (id.).

          Here, we conclude the inquiring judge may serve as counsel to the board of elections, including providing advice on legal questions related to the administration of elections; drafting, reviewing and approving contracts; and assisting with employment issues without involvement in litigation.  However, the inquirer should keep in mind that, as an elected official, he/she should refrain from giving legal advice on administrative issues affecting the election ballot during any year in which the inquirer’s name will appear on that ballot and must avoid impermissible political activity (see generally 22 NYCRR 100.5[A][1]). 

d. Counsel to the Department of Public Health

          As described in the inquiry, the role of counsel to the county’s department of public health includes matters relating to education, preventive services, health codes, medical policies, and overseeing the crime lab. 

          We note that overseeing the crime lab would fall under the rubric of law enforcement or court-related activity and therefore would pose an impermissible/incompatible representation, as discussed above.  Likewise, representing health department enforcement personnel in administrative proceedings for health code violations or for selling tobacco to minors has already been addressed and is impermissible.

          We have said that a part-time judge may serve as a hearing officer for the county health department (see Opinions 09-91; 88-148) and may accept appointment to the health department’s “purely educational” injury prevention task force (Opinion 91-153).  Accordingly, we conclude that the inquiring judge may serve as counsel to the county’s public health department, except as noted above with respect to matters involving the crime lab or quasi-prosecutorial duties.  Of course, if the inquiring judge serves as counsel to this department, he/she may not preside over any matters involving the department (see Opinions 09-91; 88-148).  

e. Counsel to the Purchasing Division

The inquiry indicates that counsel assigned to the purchasing division handle competitive bidding and advertising requirements, cooperative purchasing programs with other municipalities, establishing specifications and standards, and identifying suppliers for goods and services. 

We have said a part-time judge may maintain concurrent employment as the chief financial officer/treasurer for an airport authority, whose employment duties include oversight of accounting and financial affairs, information technology services, purchasing and procurement (see Opinion 18-77 [noting that the duties must not involve fund-raising or law enforcement functions]).  Conversely, a part-time judge “may not serve simultaneously as County Manager and Budget Officer for the county in which the judge presides, where the position oversees the budgets of all county departments, including the local district attorney and public defender whose attorneys will appear before the judge” (Opinion 10-200/11-74). 

          Here, we conclude that the inquiring judge may also serve as counsel to the purchasing division for the county.  However, the inquirer is cautioned against undertaking contract/purchasing duties on behalf of any law enforcement agency that regularly appears in the judge’s court.  For example, the inquiring judge should not be involved in negotiating contracts on behalf of the sheriff’s department for body worn or dashboard cameras as that could appear to align the judge with law enforcement functions or compromise the judge’s appearance of impartiality (cf. id.).

f. Real Estate Transactional Matters

          We conclude that the inquiring town justice may handle transactional matters involving real estate on behalf of the county, unless it involves representing the county in negotiations with the town in which he/she presides (see Opinion 89-85).