Opinion 03-26

December 21, 2004

         This is in response to your inquiry (03-26) which asks: “Can a part-time judge who is also a lawyer be appointed a special prosecutor, a law guardian, or assigned counsel for a criminal matter?”

         Although not explicitly stated, we presume you are asking whether you are permitted to make such assignments in your court.

         The Committee had previously addressed such matters as follows:

         1. A part-time lawyer-judge may not be appointed a special prosecutor. See Opinion 93-33.

         2. Part 36 of the Rules of the Chief Judge (22 NYCRR Part 36) governs the judicial appointment of fiduciaries. Part-time judges are subject to the limitations and conditions set forth in that Part. In particular you should be guided by the various provisions concerning appointments of law guardians. See 22 NYCRR 36.1(a)(3); 36.1(b)(1); 36.2(c)(1).

         3. A part-time judge who is a lawyer may be a member of an 18-B panel and be assigned criminal cases. Of course, if the lawyer-judge had any judicial involvement whatsoever in the matter, he or she may not receive such an assignment. See 22 NYCRR 100.6(B)(2).