Opinion 24-107

June 20, 2024

Digest:  Where a part-time town justice is also a court attorney/law clerk in city court:
(1) the judge may conduct arraignments in the centralized arraignment part on cases originating in the city court, but must be insulated from those cases as a court attorney/law clerk, and the insulation and the basis for it must be disclosed on the record to all parties and their counsel;
(2) the judge may arraign warrants issued by the city court where he/she serves as a court attorney/law clerk, assuming the judge is not otherwise disqualified in the matter; and
(3) whether the judge may decline to serve in the centralized arraignment part is primarily an administrative question, rather than an ethical one.

Rules:   22 NYCRR 50.3(a); 100.2; 100.2(A); 100.3(A); 100.3(E)(1); 100.3(E)(1)(a)(ii); 100.6(B)(4); Opinions 23-97; 22-188; 19-71; 19-05; 18-184.

Opinion:

          The inquiring part-time town justice is also a full-time court attorney/law clerk in a city court in the same county.  The judge notes that appeals from the town court go to county court, rather than city court.  As court administrators are considering assigning the inquiring judge to handle off-hour arraignments in the county’s centralized arraignment part, the judge asks about potential conflicts arising out of the proposed assignment.

          A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  Because a judge’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]), a part-time judge’s outside employment must be compatible with judicial office and must “not conflict or interfere with proper performance of judicial duties” (22 NYCRR 100.6[B][4]).  A judge must disqualify in any “proceeding in which the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]), including where “the judge has personal knowledge of disputed evidentiary facts concerning the proceeding” (22 NYCRR 100.3[E][1][a][ii]).

          We have previously advised that the position of town justice is compatible with that of court attorney/law clerk in a state-paid court (see e.g. Opinion 22-188), although a court employee must obtain advance written permission for such dual employment from the appropriate administrative authority (see 22 NYCRR 50.3[a]).  We have also advised that a town justice who is also a full-time law clerk to a county court judge in the same county may conduct arraignments in the centralized arraignment part, but must thereafter be insulated as a law clerk from (a) cases he/she arraigned in the centralized arraignment part and (b) cases originating in or appealed from the judge’s town court; but need not be insulated from other cases arraigned by a justice of another town or village court (see Opinion 23-97).  “The insulation and the basis for it must be disclosed on the record to all parties and their counsel” (id.).  We have also said a part-time judge may not allow his/her co-judges to assume responsibility for all felony-related criminal proceedings in order to avoid insulation as law clerk to a full-time judge in a criminal part (see Opinion 18-184).  Thus, “judges may not insulate themselves as judges to facilitate their nonjudicial employment” (Opinion 19-71).

1. Arraigning Matters that Originate in the City Court

          The judge first asks about the effect of conducting an off-hours arraignment in the centralized arraignment part in a matter that is subsequently transferred to city court.  Specifically, if the judge handled the arraignment in the centralized arraignment part, is the judge thereafter precluded from participating in any post-arraignment proceedings in city court as a court attorney/law clerk?

          As a town justice assigned to the centralized arraignment part, the judge may conduct arraignments in cases that originate in the city court (see Opinions 23-97; 19-71).  However, the judge must thereafter be insulated in city court as a court attorney/law clerk from cases he/she arraigned in the centralized arraignment part (see id.).  The insulation and the basis for it must be disclosed on the record to all parties and their counsel (see id.). 

2. Arraigning a City Court Warrant

          The judge next asks if he/she may “arraign a City Court warrant” in the centralized arraignment part from the city court judges he/she works with as a court attorney/law clerk.  In answering this question, we necessarily assume the inquiring judge “has acquired no information concerning the defendant in his/her capacity as a court attorney[/law clerk]” (Opinion 19-05) and is not otherwise disqualified in the matter.

          Since our prior decisions do not differentiate as to what types of cases the justice may or may not arraign, we see no ethical prohibition on arraigning a defendant on a warrant issued by city court judges, provided the judge can be fair and impartial.  However, the judge must be insulated in city court as a court attorney/law clerk from cases he/she arraigned in the centralized arraignment part (see Opinions 23-97; 19-71). 

3. Declining Assignment to the Centralized Arraignment Part

          Finally, if the judge cannot handle city court matters in the centralized arraignment part due to his/her nonjudicial employment, the judge asks if is it ethically permissible to decline centralized arraignment part assignments entirely, to avoid the risk of holding in-custody defendants longer than necessary.

In our view, the propriety of declining to serve in the centralized arraignment part raises primarily administrative issues, rather than ethical ones, and is thus a determination to be made by court administrators.