Opinion 25-08

February 6, 2025

Digest:   A part-time village justice may also serve as a non-supervisory attorney for a city law department in another county, provided he/she will have no prosecutorial or quasi-prosecutorial duties.

Rules:    Judiciary Law § 471; 22 NYCRR 100.2; 100.2(A); 100.6(B)(1)-(4); Opinions 22-35; 21-148; 19-56; 15-09; 10-105; 06-98.

Opinion:

          The inquirer is currently a juvenile justice prosecutor in a city law department, but is willing to take on a new role so that he/she can serve as a part-time village justice in a different county.  Accordingly, the inquirer asks if employment as a non-supervisory city attorney who exclusively handles interstate child support matters under articles 4 and 5-a of the Family Court Act is ethically compatible with part-time judicial office. 

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  A part-time judge may accept public employment in a federal, state, or municipal department or agency, provided 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]).  A part-time judge, unlike a full-time judge, may practice law, subject to certain limitations (see e.g. 22 NYCRR 100.6[B][1]-[3]; Judiciary Law § 471).

          As we have previously noted, “[w]here a part-time judge’s proposed concurrent public employment does not involve law enforcement or prosecutorial functions and is not likely to involve the judge with persons or agencies that regularly appear before the judge, it is often permissible” (Opinion 22-35).  For example, “while there is no per se incompatibility between the positions of assistant county attorney and town justice, there is a conflict if the responsibilities of the assistant county attorney position involve quasi-prosecutorial duties, such as handling juvenile delinquency and persons-in-need-of-supervision cases” (Opinion 06-98).  Accordingly, we advised “a judge should not be in the position of prosecuting such cases,” and, therefore, a part-time judge “should not serve as an assistant county attorney if such service would require him or her to be involved in such cases” (id.).  In contrast, we have advised that a part-time judge may concurrently serve in an assistant county attorney position handling child welfare matters, provided he/she is “not called upon to handle (or supervise the handling of) juvenile delinquency or PINS cases or other prosecutorial duties” (Opinion 21-148; see also e.g. Opinions 15-09; 10-105). 

          Likewise, we have 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 (see Opinion 22-35).  We explained that a government attorney’s work in seeking civil confinement or extended government supervision, “while legally cast in a civil context, has many aspects of a quasi-criminal proceeding” (id.).

          Conversely, we have said a part-time judge may serve as a Department of Social Services attorney handling neglect proceedings (see Opinion 19-56; cf. Opinion 15-09 [implying that a part-time judge may handle “abuse and neglect proceedings and support petitions … in Family Court, under Family Court Act articles 4, 6, and 10” as a deputy county attorney]).

          The non-supervisory city attorney role here, as described by the inquirer, does not appear to involve either the prosecution of juvenile delinquency or persons-in-need-of-supervision proceedings or other quasi-prosecutorial responsibilities, or the supervision of other city attorneys who handle such matters.  Moreover, because the city is in a different county from the village, this extra-judicial employment seems unlikely to result in frequent disqualifications. 

          Accordingly, provided the duties and responsibilities of handling interstate child support matters do not include any quasi-prosecutorial or prosecutorial duties, the inquirer may maintain such employment concurrently with part-time judicial office as a village justice.