Opinion 23-201

February 1, 2024

Digest:  A part-time judge who serves as part-time counsel to a county legislature, representing the entire legislative body, may not ordinarily attend or participate in any caucus meetings.  However, the judge may enter such meetings on an issue-by-issue basis to provide a legal opinion on a legal or procedural issue, provided the judge’s activities are clearly identifiable as those of an attorney representing a client and not as partisan political activity.

Rules:   22 NYCRR 100.2; 100.2(A); 100.5(A)(1); 100.5(A)(1)(c), (g); 100.6(B)(1)-(5); Opinions 17-62; 13-98; 12-30; 06-157; 97-86; 94-10.

Opinion:

          The inquiring part-time judge is also employed as part-time counsel to a county legislature.  The judge’s responsibilities as legislative counsel include reviewing legislation and answering legal and procedural questions from legislative members, including both the majority and minority caucuses.  Legislative counsel must attend bipartisan legislative committee meetings and, on occasion, enter caucus meetings for either party to provide a legal opinion on a given legal or procedural issue.  Until recently, the inquirer was one of two legislative counsel, and co-counsel would normally enter the caucus meetings as needed.  Now, the second position has been eliminated, and the inquiring judge is the sole attorney employed by the legislative body.  Accordingly, the judge asks if it is ethically permissible, when the majority or minority caucus requests a legal opinion on a specific legal or procedural issue, to enter the meeting room in order to address that issue.  The judge would not “attend” or “sit in on” any caucus meeting, but would only enter for this limited purpose and would leave afterward.  The judge notes that the minority caucus also employs its own, separate counsel in addition to the judge’s position as counsel to the entire body.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  A judge must not “directly or indirectly” engage in any political activity unless an exception applies (see 22 NYCRR 100.5[A][1]).  Among other restrictions, a judge is specifically prohibited from engaging in partisan political activity (see 22 NYCRR 100.5[A][1][c]) and attending political gatherings (see 22 NYCRR 100.5[A][1][g]).  A part-time judge may, subject to certain limitations, engage in the private practice of law (see 22 NYCRR 100.6[B][1]-[3], [5]), and may accept public employment in federal, state or municipal departments or agencies so long as such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties (see 22 NYCRR 100.6[B][4]).

          We have advised that “positions which would invariably immerse a judge in partisan political activity are incompatible with judicial office, and therefore barred” (Opinion 06-157).  For example, we advised that a part-time judge may not accept employment as counsel to a state senator, “where the primary functions of the counsel position include service to constituents of a partisan political nature” (Opinion 97-86) or serve as a state assembly member’s community liaison representative that “has been hired by and reports to a political representative concerning problems and requests of constituents” (Opinion 94-10). 

          Thus, we have opined that a part-time judge may not serve as counsel to the minority conference of a county legislature where the position “would frequently and unavoidably be drawn into discussions of controversial, partisan political matters” (Opinion 06-157). 

          Nonetheless, in Opinion 13-98, we advised that a part-time judge may accept employment as assistant staff counsel to the minority conference of a county legislature, where the duties of the position were “specifically designed to exclude partisan political activities and functions of the type discussed” in our prior opinions.  To avoid any appearance of impropriety, we emphasized that the employment was permitted only if: (1) the judge’s actions were “clearly identifiable as those of an attorney representing a client, and not as partisan political activity;” (2) the judge interacted “directly with minority counsel in the performance of his/her duties, rather than with individual legislators or their constituents;” and (3) the judge did not “attend legislative sessions or Minority Caucuses, or other political gatherings” (id.).  If any of those conditions failed, or if the position otherwise required impermissible political activity, we said the judge must choose between the positions (see id.).

          Building upon this precedent, we then advised that a part-time judge may accept employment as “a non-partisan legal counsel to the legislative body as a whole,” subject again to certain limitations (Opinion 17-62).  Significantly, the duties of legislative counsel to the entire body specifically included “attending legislative sessions” (id.).  We said this employment was permissible only if (1) counsel’s duties were clearly identifiable as those of an attorney representing a client and not as partisan political activity and (2) counsel was authorized to interact directly with all county legislators rather than a partisan subsection (id.).  Again, we required strict compliance with those conditions and cautioned that the judge must still avoid impermissible political activity (id.). 

          The present inquiry raises an issue we did not have occasion to address in Opinion 17-62, whether a part-time judge who is employed as legislative counsel to a county legislature may enter majority and minority caucus meetings, on request, in order to provide a legal opinion on a specific legal or procedural issue that has arisen.  In our view, the inquiring judge remains counsel to all members of the legislative body, and not a particular caucus or individual, regardless of which legislators are requesting the judge’s legal views.  On the facts presented, the judge is not being asked to be present during the entire caucus meeting, but is only asked to enter the room briefly to address a caucus regarding the judge’s legal opinion.  This is done on an issue-by-issue basis and the inquiries are strictly legal or procedural in nature.  Such activities are clearly identifiable as those of an attorney representing a client and not as partisan political activity. 

          Accordingly, we conclude that the inquiring judge may, as legislative counsel, make a very limited appearance at the caucuses for the sole purpose of providing non-partisan legal counsel on discrete legal or procedural issues that may arise (cf. Opinion 12-30 [part-time judge who is employed as clerk to the county legislature may make a “very limited appearance before the majority caucus” once a year, solely in order to “seek the nomination for reappointment as clerk for the following year”]).  We nonetheless reiterate our prior caution: “if, in practice, [the] position calls for impermissible political activity or otherwise conflicts with judicial office, the judge must cease to hold both positions” (Opinion 17-62).