Opinion 98-55

April 23, 1998

Digest:         A part-time town justice may not serve as a public defender in the county in which the town court is located.

Rules:          22 NYCRR 100.6(B)(2),(3),(4). Opinions 95-81(Vol. XIII); 91-144(Vol. VIII); 90-143 (Vol. VI); Op. Att'y Gen. (Inf) 87-43; 24 Opn. St. Comp. 921.

Opinion:

         The first assistant public defender in a rural county, who works part-time in that position, asks whether it is permissible to serve as a town justice in a town wholly within the county of such employment. The inquirer states that the members of the public defender's office are independent counsel who work part-time representing indigent criminal defendants in specific assigned courts in the towns, villages and cities throughout the county. There is no central public defender office and the public defender himself has an office for the practice of law in the county seat. The part-time public defenders operate with nearly complete autonomy, submitting monthly reports of open and closed cases.

         Since there is a vacancy in the town justice position where the inquirer resides, he/she inquires as to the propriety of retaining the part-time position in the public defender's office while at the same time holding the position of town justice.

         It is eminently clear that should the inquirer become a part-time judge, he or she may maintain the private practice of law within the bounds set by the Rules Governing Judicial Conduct. 22 NYCRR 100.6(B)(2),(3). Such private practice could include serving as a public defender in another county. See Opinions 95-81(Vol. XIII); 91-144(Vol. VII); 90-143(Vol. VI). But, in the view of the Committee, that practice cannot include serving as first assistant public defender in the county where the Town Court is located. Such employment, we believe, is ethically "incompatible with judicial office ..." 22 NYCRR 100.6(B)(4). Further, it appears that the two positions may also be legally incompatible. In the Opinion of the Attorney General (Inf) 87-43, it is stated that "one person may not hold simultaneously the positions of town justice and secretary to the public defender". It would follow that if the secretary to the public defender can not serve in those positions then clearly the public defender can not. See also, 24 Opn. St. Comp. 921.