Opinion 23-212
February 1, 2024
Digest: (1) A part-time judge may serve on the legislative committee of a lawyers’ association, provided its agenda and activities are limited to improvement of the law, the legal system, or the administration of justice.
(2) A town justice who previously provided legal services to the town must disqualify in all matters in which the town is a party for a period of two years from the termination of the representation. The disqualification is subject to remittal.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.4(A)(1)-(3); 100.5(A)(1); 100.5(A)(1)(iii); Opinions 22-187; 21-185; 21-110; 21-22(A); 20-209; 19-120; 18-08; 17-70; 12-25; 11-29; 10-147; 10-130; 07-68; 06-34; 98-160; 98-149.
Opinion:
The inquiring town justice is a part-time lawyer judge. The judge first asks if he/she may attend and participate in a national lawyers’ association’s legislative committee meetings and meet with federal or state legislators to advocate for the passage of bills relating to labor and employment laws.[1] Second, since the judge previously represented the town in certain labor/employment matters, the judge asks if he/she may preside over matters in which the town is a party.
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’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]). A judge’s extra-judicial activities therefore must not cast reasonable doubt on the judge’s capacity to act impartially, detract from the dignity of judicial office, interfere with the proper performance of judicial duties, or otherwise be incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]). Further, a judge must not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A][1]). However, a judge may engage in limited political activity “on behalf of measures to improve the law, the legal system or the administration of justice” (22 NYCRR 100.5[A][1][iii]). A judge must disqualify where required by rule or law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14) and in any other proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). Generally, “where a judge must disqualify him/herself, the judge must not preside unless the disqualification is remitted – even on matters that may appear to be routine, mundane, uncontested or ministerial in nature” (Opinion 12-25).
Bar Association’s Legislative Committee
In general, “a judge may contact legislators about matters concerning the law, the legal system, or the administration of justice” (Opinion 18-08; see also Opinion 19-120 [discussing many prior opinions]). We have also said a judge may co-chair a bar association’s subcommittee to “address the issue of Brady disclosure and other related Brady issues” (Opinion 11-29), and may publicly advocate for or against criminal justice bills (see Opinions 10-147 [bill proposing to “extend the rights of defendants before the Justice Courts”]; 07-68 [bill proposing to “suspend Medicaid for people entering prison”]; 06-34 [bill to “benefit incarcerated domestic violence survivors who have been convicted of crimes against their abusers”]).
In contrast, advocacy activities that do not directly relate to improvement of the law, the legal system or the administration of justice are generally not permitted (see e.g. Opinions 21-185 [judge who is a community college trustee may attend a “national legislative summit” sponsored by a non-profit college trustees association, but may not meet with federal legislators in connection with the conference “where the meetings will be seen as lobbying efforts in support of organization’s legislative agenda”]; 10-130 [judge on the board of a non-profit that promotes safety standards and administrative reform in the sport of boxing “may not meet with members of the State Legislature to promote the organization’s legislative agenda”]; 98-160 [judge/library trustee may not lobby for a library]; cf. Opinion 17-70 [court attorney-referee who is a rabbi may teach, preach, and write on Israel-related issues concerning the law, the legal system or the administration of justice, but not on non-legal matters of substantial public and political controversy, such as the Israeli-Palestinian conflict]).
Here, we conclude it is permissible for the inquiring judge to serve on the national lawyer association’s legislative committee to the extent that its activities seek to promote improvement of the law, the legal system, or the administration of justice.
Should the committee’s agenda or activities reflect negatively on the judge’s impartiality or insert the judge unnecessarily into public controversies, however, ethical considerations may preclude further service thereon (see Opinions 98-149 [the nature and extent of a judge’s participation in a bar association’s activities may be subject to ethical limitations]; 20-209 [full-time judge may not be a member of a bar association task force organized to monitor and discuss fiscal and human rights issues faced by residents of a United States territory]; 22-187 [judge may not serve on a bar association committee on corrections and community reentry on the facts presented]).
The inquirer should review the legislative committee’s specific agenda and activities and determine whether they are in conformity with the principles cited herein.
Town as a Former Client
While a part-time attorney judge is representing their local municipality on a discrete individual matter, and for two years after the representation completely terminates, the judge must disqualify in all matters where the municipality is a party (see Opinion 21-110). The disqualification is subject to remittal after full disclosure on the record of the basis for disqualification and the voluntary affirmative consent of the parties and their counsel (see id.; see also Opinion 21-22[A]).
The inquirer is therefore disqualified, subject to remittal, from presiding over matters in which the town is a named party for a two-year period measured from the termination of the representation, including the payment of legal fees.
We note that, during the applicable disqualification period, the judge may nonetheless preside in alleged town code violations, provided that such matters are prosecuted only in the name of the People of the State of New York, pursuant to authority delegated by the District Attorney, and the town is not a named party to the proceeding (see Opinion 21-110 fn 1).
[1] The entity’s status as a bar association “is in no way diminished by the fact that its primary focus and concern” may be plaintiff-oriented (Opinion 98-149), in that its membership consists primarily of lawyers who represent plaintiffs in employment law matters.