Opinion 99-126

September 14, 1999

NOTE: The Chief Judge’s rules concerning dual employment of nonjudicial court employees now appear at 22 NYCRR 50.3.  For guidance on Part 50 (formerly Part 25), court personnel may consult the Office of Court Administration’s Nonjudicial Ethics Helpline (888-283-8442).

Digest:         It is not unethical for a part-time town justice to also serve as a part-time court attorney in the Family Court in the same county, subject to certain safeguards concerning insulation and disqualification, and provided that permission is obtained for dual employment.

Rule:             CPL 530.11; 530.12; FCA 812; 22 NYCRR 25.37; 100.6(B)(4).

Opinion:

         A part-time town justice has been offered the position of part-time court attorney in the Family Court in the same county. There is a second justice serving in the Town Court and a second court attorney serving in the Family Court.

         The Rules Governing Judicial Conduct allow a part-time judge to accept public employment in a governmental department or agency provided that such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge's duties. 22 NYCRR 100.6(B)(4). Further, the Rules of the Chief Judge of the State of New York provide that any person who is regularly employed in a position in the classified service in the Unified Court System may not serve in another governmental position without first obtaining the permission of his or her appointing authority. 22 NYCRR 25.37. A court attorney is a position in the classified service of the Unified Court System. In the instant matter, the permission of the Chief Administrator of the Courts would therefore be required.

         In this instance, the Committee is of the opinion that there is no inherent ethical conflict between the two positions. Although the Family Court and the Town Courts have concurrent jurisdiction over family offenses, the proceedings generally progress separately. CPL 530.11, FCA 812. In certain instances, when the Family Court is not in session a town justice may issue or modify a Family Court order of protection. Jurisdiction over such an order is then transferred to the Family Court, where the Family Court judge may continue or modify the conditions set forth in the local justice's order. CPL 530.12. In these instances, or other matters that involve either or both the town court and the Family Court and the potential for conflict, the court attorney/judge must be insulated or disqualified from involvement and the matter referred either to the other justice or the other court attorney.