Opinion 96-149

March 21, 1997

Please note that Part 822.1 of the Rules of the Appellate Division, Third Department (Assignment of Counsel) has been amended. Among other changes, Rule 822.1(b) no longer states that a judge or justice of a city, town or village court shall not be assigned to act as counsel pursuant to section 35 of the Judiciary Law or section 722 of the County Law. 22 NYCRR 822.1(b).

         This is in response to your request (96-149) for an opinion from the Committee concerning section 822.1 of the Rules of the Appellate Division, Third Department, which deals with the assignment of counsel. That provision states, in part, that a judge of a village court may not be assigned as counsel pursuant to section 35 of the Judiciary Law or section 722 of the County Law (22 NYCRR 822.1).

         As explained in your letter, you are also a full-time clinical law teacher at a university law school. In that capacity, you teach in the legal aid clinic and supervise law students representing low income clients who have been assigned to you through the county Assigned Counsel Office. Since the Appellate Division rule apparently precludes your receiving such assignments you have suggested two possible methods of avoiding its prohibition. You ask the Committee’s opinion as to whether either of the proposed methods of circumvention “is an appropriate and ethical solution to the problem.”

         The Committee is unable to provide you with such an opinion. Essentially, you are asking the Committee to state whether the use of either procedure means that an assignment is not being made to a village justice and therefore is not barred by section 822.1. That, however, presents a legal question requiring a legal interpretation of an Appellate Division rule and not a question of judicial ethics. Accordingly, the Committee is not in a position to provide an opinion in response to your inquiry.