Opinion 88-46

April 11, 1983

Topic:          Dual employment as a town justice and assistant county attorney.

Digest:         A town justice may also serve as assistant county attorney provided the justice disqualifies himself in cases involving a conflict or an appearance of impropriety.

Rules:          22 NYCRR 100.5(f); 100.5(h)

Opinion:

         A part-time town justice asks whether it would be permissible to serve as a full-time assistant county attorney as well.

         Section 100.5(b) of the Rules of the Chief Administrator addresses the employment of part-time judges as follows:

A part-time judge may accept private employment or public employment in a Federal, State or municipal department or agency, provided that such employment is not incompatible with judicial office and does not interfere with the proper performance of the judge’s duty.

         A county agency, such as the county attorney's office, can be construed as falling within the parameters of permissible “public employment” under the rule. Accordingly, a judge may serve as both part-time town justice and full-time assistant county attorney.

         The part-time justice, however, must disqualify himself in any case which involves even an appearance of impropriety between his two positions, including cases handled by other county attorneys. He may not appear in his own court or in any other court in the same county which is presided over by a judge who is permitted to practice law, pursuant to section 100.5(f) of the rules, which governs the practice of law by part-time judges.

         The committee does not consider the question whether part-time tenure as a town justice is compatible, as a practical matter, with full-time employment as an assistant county attorney.

         This Opinion is advisory only and is not binding upon either the Office of Court Administration or the Commission on Judicial Conduct.