Opinion 23-13
February 2, 2023
Digest: A part-time town justice may serve as a part-time assistant conflict defender in the county in which the judge’s court is located.
Rules: 22 NYCRR 100.2(A); 100.3(A); 100.3(E)(1); 100.6(B)(1)-(5); Opinions 21-60; 16-137; 14-136; 12-77; 08-108; 08-22; 05-88; 99-97; 98-55; 95-81; 91-86.
Opinion:
A part-time town justice asks if they may be employed as a salaried conflict defender in the county in which the judge’s court is located. The judge’s conflict defender caseload is primarily in Family Court, although the judge also appears in a few other town courts before non-attorney judges. In their role as a conflict defender, the judge works out of their own independent law office, rather than in the same room as other Family Court conflict defenders. The judge does not handle child protective proceedings, persons in need of supervision (PINS) cases, or juvenile delinquency matters.
A judge must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]) and must disqualify in a proceeding in which the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). Further, a judge’s judicial duties take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]). Nonetheless, 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 of the judge’s duties” (22 NYCRR 100.6[B][4]). Moreover, a part-time attorney judge is permitted to practice law, subject to certain limitations (see 22 NYCRR 100.6[B][1]-[5]). Section 100.6(B)(2) provides that a part-time attorney judge:
shall not practice law in the court on which the judge serves, or in any other court in the county in which his or her court is located, before a judge who is permitted to practice law, and shall not act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto.
In prior opinions, we have advised that a judge must be cautious when their non-judicial employment may appear to align the judge with law enforcement or defense functions, as such a position may cast doubt on the judge’s capacity to act impartially and thereby interfere with proper performance of judicial duties (see Opinions 16-137; 08-22; 05-88; 98-55).
In Opinion 16-137, we said a part-time judge may accept employment as a salaried conflict defender in the county in which the judge’s court is located. We reasoned that the judge’s employment was akin to a court-appointed 18-B attorney, albeit salaried by the county rather than paid by voucher. It is well-established that a part-time attorney judge may serve as an 18-B attorney before full-time judges and non-lawyer part-time judges, except those in the judge’s own court, within the same county in which the judge’s court is located (see Opinions 12-77, 99-97; 91-86). On the facts presented, we concluded that a part-time attorney judge may accept conflict defender assignments from full-time judges and non-lawyer part-time judges before whom the judge is otherwise permitted to appear (see Opinion 16-137). However, a judge may not accept appointments from, nor appear before, any part-time judge within the county who is permitted to practice law or any judge within the judge’s own court (see id.).
We also advised that a part-time City Court judge may accept employment with the conflict office in the same county where the City Court is located to handle custody and visitation matters in Family Court, but should disqualify if another attorney from the conflict office appears in City Court (see Opinion 08-108).1
In Opinion 05-88, we advised that a part-time town justice may not accept assignments to perfect criminal appeals from the county public defender’s office that provides criminal defense services for defendants in the town justice’s court, but may accept such assignments from the county assigned counsel conflict department, provided the town justice exercises recusal in any case that comes before the judge in which the defendant is represented by the conflict department. In our view, the distinction we drew in Opinion 05-88 (and in Opinion 98-55) does not prohibit the proposed conduct here, because this judge is not employed as a public defender in the county where the judge presides.2
Somewhat analogously, we also advised that a part-time judge may not accept employment as a staff attorney with Legal Aid in the same county where the judge presides, where the proposed employment would unduly disrupt court operations (see Opinion 14-136).
In light of the foregoing, we conclude that the outside employment here is permissible as described. The part-time town justice’s employment as a part-time salaried conflict defender in the county in which the judge’s court is located is not incompatible with judicial office and the judge’s impartiality cannot reasonably be questioned as result of such work. Much like the situation described in Opinion 16-137, the judge’s employment with the conflict defender’s office appears to be more akin to a court-appointed 18-B attorney, albeit salaried by the county rather than paid by voucher. Moreover, this judge’s conflict defender caseload is primarily in Family Court, much like that of the part-time city court judge in Opinion 08-108.
In our view, the judge’s part-time employment as a salaried conflict defender does not impermissibly align the judge with defense functions and does not seem likely to unduly disrupt court operations in the judge’s court. Accordingly, we conclude the judge may work as a conflict defender before full-time judges and non-lawyer part-time judges, except those in the judge’s own court, within the same county in which the judge’s court is located. However, the judge may not accept appointments from, nor appear before, any part-time judge within the county who is permitted to practice law or any judge within the judge’s own court (see 22 NYCRR 100.6[B][2]).
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1 Unlike the inquiring city court judge in Opinion 08-108, nothing in the present inquiry suggests that the inquiring town justice has a co-judge who is or may be temporarily assigned to preside in the Family Court.
2 We note that, in Opinion 21-60 and Opinion 95-81, the only question presented was whether a part-time lawyer judge may serve as an assistant public defender in another county. In both instances, we said yes, but advised that the judge must not preside in any matter where another attorney from the same public defender’s office appears.