Opinion 90-143

October 23, 1990

Digest:         A part-time judge may serve as a public defender for any client before a full-time judge or a part-time lay judge in the judge’s county other than his own court, but is prohibited from appearing before a part-time judge in the county who is permitted to practice law and may not preside over any matters handled by other attorneys from the public defender’s office. A part-time judge may serve as law guardian in the family court provided such appointment does not conflict or interfere with the judge’s judicial duties.

Rules:          22 NYCRR §§100.5 (f) and (h)

Opinion:       A part-time judge, whose court is in the southern part of a county, poses three questions:

                   (1)     Must the judge resign as judge if the judge is appointed as a member of the public defender’s office, which is responsible for the criminal defense of persons in the northern part of the county?

                   (2)     Must the judge resign as judge if the judge is appointed a member of the family law public defender’s office?

                   (3)     Would it be a conflict of interest for the judge to accept an appointment to the position of part-time law guardian for either the northern or southern part of the county?

         Although two of the judge’s questions request that we advise the judge as to whether the judge must resign as judge, our answers to all three questions will be framed in terms of the ethical issues raised by the questions.

         Section 100.5 (f) of the Rules of the Chief Administrator provides, in pertinent part:

A judge who is permitted to practice law shall nevertheless, not practice law in the court in which he or she is a judge, whether elected or appointed, nor shall a judge practice law in any other court in the county in which his or her court is located which is presided over by a judge who is permitted to practice law.... No judge who is permitted to practice law shall permit his or her partners or associates to practice law in the court in which he or she is a judge....

         Thus, the inquiring part-time judge, who is also an attorney, may serve as a public defender in the courts of the county before judges who are not permitted to practice law (other than the court in which the inquiring judge is a judge), but is prohibited from representing any clients before a part-time judge in the same county who is permitted to practice law. The judge may not sit as a judge in any matter in which the public defender’s office, of which the judge is a part, appears.

         The law guardian services in question would be performed in the Family Court and the judge is not prohibited from accepting such appointment, provided it does not conflict or interfere with the proper performance of judicial duties. [22 NYCRR 100.5 (h)].