January 31, 2008
Digest: A newly elected part-time town justice who currently is completing his/her final criminal appeals on assignment by a county conflict/assigned counsel office is not disqualified from presiding in cases where the attorney who prosecutes violations in the judge’s court also accepts assignments to represent indigent criminal defendants in courts other than the judge’s court from the same county conflict/assigned counsel office.
Rules: 22 NYCRR 100.2(A); 100.3(E)(1); 100.6(B)(1); Opinions; 05-88; 96-91 (Vol. XV).
A newly elected part-time town justice currently is completing his/her final criminal appeals on assignment by a county conflict/assigned counsel office. The judge states that the attorney who prosecutes violations (usually speeding tickets) in the town court also works part-time for the same county office, but does not represent clients from that office in the judge’s court. Because they both work for the county conflict/assigned counsel office, the judge asks whether he/she is disqualified from presiding when the attorney appears in the town court as town prosecutor.
The Committee has previously advised this inquiring judge that he/she is disqualified from presiding in any case where an attorney who works for the county conflict/assigned counsel office appears before him/her until he/she concludes all work for and receives final payment from that office. In deciding the prior inquiry, the Committee relied on Opinion 05-88 in which we concluded that a town justice, who previously served as chief appellate counsel for the public defender’s office, may accept assignments to perfect criminal appeals from the county assigned counsel conflicts office, but must exercise recusal in any case that comes before him/her in the town court in which that office represents the defendant.
The inquiring judge advises that he/she cannot function as the town justice if he/she is disqualified in all cases where the town prosecutor appears. Consequently, the judge now asks the Committee to re-consider the application of Opinion 05-88 to his/her situation in light of the following factors:
1)The conflicts office obviously is a defense agency.
2) The conflicts office does not represent defendants on mere violations, which is all the town prosecutor handles.
3) The town prosecutor would not even be ethically able to defend any client before the judges’ court, as he/she was prosecuting in the same jurisdiction.
4) The town prosecutor had absolutely nothing to do with the judge receiving assignments, and is not involved in the approval of vouchers. Further, since the judge is not taking any further assignments, the town prosecutor will have no authority, impact or contact with any of the remaining cases the judge is handling.
5) There is no possibility that the town prosecutor could ever represent a client through the conflicts office in the town court.
6) There is no possibility that anyone could even have the impression that the town prosecutor was representing a defendant through the conflicts office in the judge’s court.
7) Opinion 05-88, dealing with a part-time town justice representing conflict defendants on appeal, prohibits the part- time justice from presiding over a case where a defendant is “represented” by the conflicts office. Very clearly, this would never happen by the town prosecutor “prosecuting” (predominantly) speeding tickets in the judge’s court.
Pursuant to the Rules Governing Judicial Conduct , a judge must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]) and must disqualify him/herself in a proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]).
Based on the facts presented in this inquiry, it is the Committee’s view, upon reconsideration, that, although the inquiring judge presently is handling appeals for the county conflict/assigned counsel office and the attorney who is the town prosecutor also works as a part-time criminal defense attorney for the same office, the inquiring judge’s impartiality cannot reasonably be questioned if he/she presides in cases where the attorney appears in the town court as the town prosecutor. The judge, therefore, need not disqualify him/herself in those cases. However, should that attorney appear in the judge’s court pursuant to an assignment by the county conflict/assigned counsel office, the judge would be disqualified (see Opinion 05-88).
In response to the judge’s remaining question, he/she may collect outstanding payments due for work already performed for the county conflict/assigned counsel office (see 96-91 [Vol. XV]) as well as payment for work that is not yet completed (see 22 NYCRR 100.6[B]).