Opinion 23-66


June 15, 2023


Digest:         A part-time judge may serve as administrator of the assigned counsel program in a different county from the county where the judge presides.


Rules:          22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(D)(1)(c); 100.4(G); 100.6(B)(1)-(4); Opinions 21-77; 21-60; 18-149; 18-81; 17-02; 14-136; 09-178; 98-55; 92-76.




          An attorney who serves as assigned counsel administrator in one county is seeking election as town justice in another county.  As assigned counsel administrator, the inquiring judicial candidate is currently responsible for supervising the attorneys serving in criminal matters, preparing the budget, and overseeing the quality control attorney appointed to review and assess the performance of each assigned counsel.  Additional duties include applying for grant funding and providing assistance to Family Court in the other county, as needed.  The candidate asks if it is ethically permissible to continue serving as a full-time assigned counsel administrator in a different county (and judicial district) from the county where the candidate will preside, if elected town justice.  The candidate believes conflicts will be infrequent, but recognizes that an individual eligible for assigned counsel could be charged with criminal conduct both in the candidate’s town and in the other county where the inquirer serves as assigned counsel administrator. 


          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  A part-time judge is permitted to practice law, subject to certain limitations (see 22 NYCRR 100.6[B][1]-[3]; 100.4[G]), and “may accept private employment or public employment in a federal, state or municipal department or agency, provided such employment is not incompatible with judicial office and does not conflict with the proper performance of the judge’s duties” (see 22 NYCRR 100.6[B][4]).  Nevertheless, a judge’s judicial duties take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]). 


          The instant inquiry is a matter of first impression, as we have not previously addressed whether a part-time judge may also be employed as a full-time assigned counsel plan administrator in a different county than the county in which the judge presides. 


          We have previously advised that a part-time judge may not serve simultaneously in the same county as either administrator or deputy administrator of the county’s assigned counsel program (see Opinions 21-77; 18-149; 09-178).  We noted that a judge serving as assigned counsel administrator in the same county “is likely to learn information about litigants who may appear in his/her court which poses the risk that the judge may receive” impermissible ex parte communications (Opinion 09-178).  We also noted that “the inquirer cannot approve attorneys’ vouchers as both the presiding judge and as the assigned counsel or conflicts office administrator” (id.).  Within the same county, such dual roles could also give the appearance of a special relationship between the judge and assigned counsel, raise questions of bias or improper alignment with the defense by the judge, and potentially involve the judge in “frequent transactions” with lawyers “likely to come before the court on which the judge serves” (see 22 NYCRR 100.4[D][1][c]; Opinion 18-81).  We also advised that the supervisory and administrative responsibilities of assigned counsel administrator in the same county would interfere with the performance of judicial duties, as the judge would need to disqualify in all cases involving the local assigned counsel program (see Opinion 18-149).


          Here, by contrast, where the inquirer would serve as town justice in one county and as assigned counsel administrator in a different county and even a different judicial district, none of the above-referenced conflicts is present.[1]   


          Accordingly, assuming that disqualification will be an infrequent or remote occurrence, we conclude that the inquirer may continue to serve as the full-time assigned counsel administrator in a different county than the county in which the judge will preside, if elected as town justice.  However, if the outside employment “involves too frequent disqualification, and an undue burden on the co-judge, the inquiring judge will have to choose between the two positions” (Opinion 92-76).


[1] Indeed, we note that while a part-time judge may not serve as an assistant public defender or as a staff attorney with Legal Aid in their own county (see Opinions 14-136; 98-55), they may do so in another county, subject to disqualification in any matter where another attorney from the same office appears (see Opinions 21-60; 17-02).