March 8, 2012
Digest: A part-time judge may operate a business as a certified forensic science expert provided that (1) the judge does not perform such services in any case in the judge’s court’s jurisdiction; (2) he/she undertakes no assignments for the New York State Police or other agencies that frequently appear in his/her court; and (3) the judge disqualifies him/herself whenever an attorney for whom the judge is performing or has performed such services or from whom the judge has recently solicited such work, appears in the judge’s court and for two years after any such services conclude and all fees are paid.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(E)(1); 100.4(D)(1)(a)-(c); 100.6(B)(4); Opinions 11-59; 09-101; 06-92; 03-95; 02-93; 99-80 (Vol. XVIII); 95-163 (Vol. XIV); 95-68 (Vol. XIII); 90-188 (Vol. VI).
Before the inquiring part-time town judge assumed office, he/she operated a business as a certified expert in certain areas of forensic science, offering services such as handwriting analysis and latent fingerprint development and comparison. The judge undertook assignments for private sector clients as well as state and federal law enforcement agencies, such as the Federal Bureau of Investigation, the Drug Enforcement Agency, the United States Secret Service, a local office of the New York State Attorney General and the New York State Police. Because many of his/her clients are government agencies, the inquirer asks whether he/she may continue to operate the business while serving as a part-time judge. The judge states he/she will decline employment in cases that will come before him/her or any other judge of his/her court.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A part-time judge 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 judge’s judicial duties (see 22 NYCRR 100.6[B]). However, a judge must not engage in business dealings that (a) may reasonably be perceived to exploit his/her judicial position; (b) involve the judge with any business, organization or activity that ordinarily will come before the judge; or (c) involve the judge in frequent or continuing business relationships with persons likely to come before the judge’s court (see 22 NYCRR 100.4[D][a] - [c]; cf. 22 NYCRR 100.2[C] [a judge must not lend the prestige of judicial office to advance the private interests of the judge or others]).
The Committee has previously advised that a part-time judge may offer his/her services as “a breathalyzer expert for attorneys in felony and misdemeanor DWI cases,” subject to section 100.4(D)(1)(c) of the Rules Governing Judicial Conduct, which provides that a judge shall not engage in financial or business dealings that “involve the judge in frequent or continuing business relationships with those lawyers or other persons likely to come before the court on which the judge serves” (id.; accord Opinion 95-163 [Vol. XIV]). Therefore, the inquiring judge also may offer his/her services as a certified forensic science expert, subject to the same limitations. In any event, the judge may not perform such services for any case within the judge’s court’s jurisdiction (see Opinion 99-80 [Vol. XVIII]).
The judge further asks whether he/she may continue to provide services as a certified forensic science expert to government agencies such as the Federal Bureau of Investigation, the U.S. Secret Service, the DEA and state agencies such as the NYS Police and the NYS Attorney General, and numerous law enforcement agencies. The Committee previously has noted that "outside employment that appears to reflect a special relationship between the judge and law enforcement can create a public perception of undue influence" (Opinion 09-101, citing Opinions 03-95 and 95-68 [Vol. XIII]). Therefore, a town justice should not serve as an assistant district attorney (see Opinion 90-188 [Vol. VI]); as a private consultant to the New York State Police reviewing old open homicide cases and other major crime files to determine whether new forensic scientific technologies could be used to help solve such cases (see Opinion 03-95); or as the office manager or account clerk/typist in the probation department in the same county of the judge's court (see Opinions 11-59; 95-68 [Vol. XIII]).
On the other hand, the Committee has recognized that a perception of undue influence is not a concern when the judge will not perform law enforcement functions for the agency and the agency does not appear in the judge's court. Thus, the Committee has advised that a part-time judge who owns an automotive towing service may accept business referrals from law enforcement agencies that do not appear in the judge's court (see Opinion 09-101); and may perform clerical work for a probation department "outside the judge's territorial jurisdiction" (Opinion 02-93).
Based on the inquiring judge’s description of his/her business’s services, it appears the judge does not perform strictly law enforcement functions as was so in Opinion 03-95, where the judge reviewed open criminal cases to determine whether forensic technologies could help the New York State Police to solve those cases. Rather, it seems the services this judge provides are utilized by private and governmental agencies. Therefore, this judge may continue to service as a certified forensic expert to government agencies, but not to any particular agency that frequently appears in the judge’s court, such as the New York State Police (see Opinion 11-59; 09-101; see also 22 NYCRR 100.4[D][b]-[c])
In Opinion 95-163 (Vol. XIV), the Committee advised that a judge who serves as a breathalyzer expert must, while retained by an attorney in a case, disqualify him/herself from all cases adjudicated in the judge’s court involving that attorney. Furthermore, once the case in which the judge had been retained as a breathalyzer expert was terminated, the judge need only disclose his/her prior employment by the attorney (see id.). More recently, however, the Committee has addressed a judge's obligations when he/she serves as a private investigator or as a court reporter for attorneys in private practice (see Opinions 06-92; 99-80 [Vol. XVIII]). In these opinions, the Committee concluded that the judge must disqualify him/herself not only when an attorney appears for whom the judge is performing such services or from whom the judge has recently solicited work, but also for a period of two years after the judge's employment by the attorney has ended (see id.).
It is now the Committee's view that disqualification for two years after the judge's employment by the attorney ends is preferable. The Committee notes that such an employment relationship between a judge and an attorney ends only after all fees due and owing the judge have been paid in full. After the two-year period expires, the judge in his/her sole discretion may disclose that he/she performed such work for an attorney appearing in the judge's court. And, it is solely within the judge's discretion to grant or deny any motion for disqualification prompted by such disclosure. Therefore, prior Opinions 06-92, 99-80 (Vol. XVIII) and 95-163 (Vol. XIV) are modified to the extent they are inconsistent with this Opinion.
In addition, if the inquiring judge must disqualify him/herself so frequently that his/her extra-judicial activities interfere with the proper performance of the judge’s duties, the judge must limit or discontinue engaging in those activities (see 22 NYCRR 100.6[B]).
Finally, to minimize any possible public perception that the judge is inappropriately exploiting his/her judicial position in the furtherance of his/her outside business, the judge should not permit reference to his/her judicial title or position in marketing or promoting the business (see 22 NYCRR 100.5[D][a]; 100.2[C]).