Opinion 24-105
June 20, 2024
Digest: A part-time justice may accept employment as an assistant public defender in another county and appear in family court, but must not preside in any matter where another attorney from the same public defender’s office appears.
Rules: Judiciary Law §§ 16, 471; 22 NYCRR 100.2; 100.2(A); 100.6(B)(2)-(4); Opinions 22-35; 21-148; 21-60; 19-56; 15-09; 98-55; 95-81.
Opinion:
A part-time town justice asks if he/she may accept a part-time family court attorney position with the public defender’s office in a neighboring county. The judge would work out of his/her own private law office rather than the public defender’s office and would be fully insulated from the public defender’s criminal practice with no access to client lists or other files. If the employment is permissible, the judge also asks if he/she may preside in certain matters involving colleagues or clients of the public defender’s office.
A judge must scrupulously avoid even the appearance of impropriety (see 22 NYCRR 100.2) and always act in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A part-time judge may accept public employment in a state or municipal department or agency, if it is compatible with judicial office and does not conflict or interfere with the proper performance of judicial duties (see 22 NYCRR 100.6[B][4]). A part-time lawyer judge must not practice law in the court in which he/she is a judge (see 22 NYCRR 100.6[B][2]; Judiciary Law § 16), in any matter “originating in that court” (Judiciary Law § 16), nor in any other court in the same county before another part-time judge who is permitted to practice law (see 22 NYCRR 100.6[B][2]). The judge also must not permit his/her partners or associates to practice law before any judge of the court in which the judge serves (see 22 NYCRR 100.6[B][3]; see also Judiciary Law § 471).
Threshold Question: Permissibility of Employment
We have advised that a part-time judge may not serve as a prosecutor or perform quasi-prosecutorial duties in any jurisdiction (see Opinion 22-35 [discussing prior opinions]; see also Opinions 21-148 [as assistant county attorney, part-time judge may not “handle (or supervise the handling of) juvenile delinquency or PINS cases or other prosecutorial duties”]; 19-56 [as Department of Social Services attorney, part-time judge may not be “involved in prosecuting JD or PINS cases”]; 15-09 [part time judge “may concurrently serve in the non-supervisory position of full-time deputy county attorney, provided the judge is not required to perform quasi-prosecutorial duties, such as handling juvenile delinquency and persons-in-need-of-supervision cases”]).
We have advised that a part-time judge may not serve as an assistant public defender in the same county where he/she presides (see Opinion 98-55) but may serve as an assistant public defender in another county, subject to disqualification in matters involving any public defender colleagues (see Opinions 95-81; 21-60). Disqualification on this basis is not subject to remittal (see id.).
Here, as the inquiring part-time judge will be employed in a neighboring county and will have no prosecutorial or quasi-prosecutorial duties, we conclude that the judge may accept the position of part-time family court attorney with the public defender’s office of that other county.
Colleagues at the Public Defender’s Office
While a public defender’s office in another county is unlikely to appear before the judge’s town court, the judge recognizes that an individual assistant public defender colleague in that other county could potentially appear on behalf of a criminal defendant in the town court. For example, another assistant public defender from the same office could be privately retained in a matter, or the assigned counsel office in the judge’s county could assign that attorney to a matter. Thus, the judge asks if it is ethically permissible to preside in a matter involving an attorney who is also employed by the same public defender’s office, when he/she appears on behalf of a client in the town court.
In our view, the judge must disqualify, without the possibility of remittal, when an attorney currently employed in the same public defender’s office as the judge appears in the judge’s court (see Opinions 95-81; 21-60).
Unknown Clients of the Public Defender’s Office
As the judge will work in a separate office and will be fully insulated from the public defender’s criminal practice with no access to client lists or other files, the judge is unlikely to be aware if a defendant before the judge has criminal matters pending in the neighboring county and is represented by the public defender’s office there. On the facts presented, it is sufficient to say that a judge cannot recuse based upon facts about which the judge is not aware. We decline to comment on other scenarios, which are not before us and are not addressed in Opinions 21-60 or 95-81.