Opinion: 97-107

November 13, 1997

Digest:  A Town Justice may not allow the Town Court's part-time clerk to simultaneously maintain part-time employment in the Public Defender's private law office.

Rules:  22 NYCRR 100.3(A), 100.3(E)(1);
            Opinion 97-51.


            A Town Justice inquires whether the judge's part-time clerk may be employed by a private attorney who is also the County Public Defender in the county encompassing the Justice's town. An Assistant Public Defender serves in the judge's court on a continual basis and the Public Defender also represents defendants in the court from time to time. The clerk would only be working with the attorney's private law practice files.

            In Opinion 97-51, this Committee advised that a full-time secretary to a Family Court Judge may be employed by an attorney who has a substantial Family Court practice, as long as the attorney did not appear before the judge, and the clerk, while so employed, did not work on any matter pending before the judge. The opinion required that the judge disqualify himself/herself in any matter in which the attorney appeared. 22 NYCRR 100.3(E)(1).

            In the instant situation, however, the Public Defender and members of the Public Defender's staff continually appear in the Town Court, thus requiring that the judge exercise recusal in many, if not most of the criminal proceedings in the court. This would impair the judge's ability to fulfill the obligations of judicial office. A "judge's judicial duties include all the duties of the judge's office prescribed by law." 22 NYCRR 100.3(A). This would include, of course, the disposition of judicial business that comes before the judge in the ordinary course of presiding over the court to which he/she was elected. Frequent disqualifications erode the judge's ability to meet that obligation, and therefore the circumstance that gives rise to the necessity for disqualification should be avoided.