Opinion 91-144

December 5, 1991

Digest:         A part-time lawyer-judge may serve as county attorney or social services attorney, provided the judge does not have to recuse himself or    herself too frequently.

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

Opinion:

         A part-time judge inquires about serving by appointment as a county attorney, assistant county attorney (appointed pursuant to County Law section 502), or department of social services attorney (appointed pursuant to Social Services Law, section 66) while still continuing in office as a part-time judge. The judge states that rarely, if ever, is the county attorney called upon to appear in the judge's court or in other local courts presided over by lawyer-judges.

         Section 100.5(h) of the Rules of the Chief Administrator provides that:

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 conflict or interfere with the proper performance or the judge's duties.

         Pursuant to this section, a part-time judge may serve as county attorney, assistant county attorney, or social services attorney. However, if his or her position as county attorney or social services attorney requires numerous recusals as judge, because of the appearances by the county attorney's office in his or her court, or because the county is a party or is otherwise involved in cases before the judge, then the judge should not take the attorney position. Further, the judge must disqualify himself or herself in any case which involves even an appearance of conflict between the two positions, including cases handled by members of the social services department's or county attorney's staff.

         Finally, being a judge who is permitted to practice law, he or she may not appear in his or her own court or In any other court in his or her own county which is presided over by a judge who is permitted to practice law. 22 NYCRR 1OO.5(f).

         While no ethical objection exists to this employment, the Committee is not passing on any questions of law.

         See this Committee’s Opinions 88-128 (Vol. III) and 88-46 (Vol. II).