April 16, 2015
PERSONAL AND CONFIDENTIAL
This responds to your inquiry (14-179) asking whether it is ethically permissible for you to accept employment as counsel with the local labor union while continuing to preside as a part-time city court judge. You indicate that the City Attorney’s office represents the city in labor contract negotiations with the local union which would employ you. The same City Attorney’s office appears before you regularly to prosecute housing court violations and appears less frequently to prosecute vehicle and traffic and criminal violations. You further indicate you would not be involved in any labor negotiations as that work is performed by a labor relations specialist. Although you would be involved in litigation before the Public Employment Relations Board or in Supreme Court, you indicate those situations are very rare.
The Committee has previously advised that a part-time judge may accept a position as legal counsel which is adversarial to District Attorneys or to preside over a matter in which one of the attorneys was the judge’s opposing counsel in an unrelated matter (see Joint Opinion 09-123/09-143 and Opinions 93-73 and 92-40). Indeed, the Committee has observed that “the dual role of the part-time attorney judge is not unique”(Opinion 92-40) and [i]t is a common practice for justices who are permitted to practice law to be adversarial in their private practices...without the attorney-justice having to recuse himself or herself” (Opinion 93-73). Here, absent some disqualifying factor, there would be no reasonable basis to question your impartiality merely because a city attorney appears before you on issues that are unrelated to your labor union work. However, judicial duties take precedence, and, therefore, in the event a conflict arises, you should disqualify yourself.
Enclosed, for your convenience, are Joint Opinion 09-123/09-143 and Opinions 93-73 and 92-40 which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)