Opinion 16-137

September 8, 2016

Digest:         A part-time judge may accept employment as a salaried conflict defender with the county, and as such may accept appointments from full-time judges and non-lawyer part-time judges before whom he/she is otherwise permitted to appear. However, the judge may not accept appointments from, nor appear before, any part-time judge within the county who is permitted to practice law or any judge within the judge’s own court.

Rules:          22 NYCRR 100.3(A); 100.4(A); 100.6(B)(1)-(5); Opinions 12-77; 09-178; 09-06; 08-22; 05-88; 99-97; 98-55; 91-86.

Opinion:

         A part-time lawyer judge asks if he/she may be employed as a salaried conflict defender in the county in which the judge’s court is located. The judge would be one of several co-equal lawyers who would accept assignments to represent criminal defendants when the public defender is conflicted out of the case.¹ Such attorneys “act in the capacity of an appointed attorney,” similar to attorneys appointed under County Law 18-B, but are instead “[c]ounty employees appointed when needed countywide” for indigent defendants when the public defender has a conflict. Assuming he/she may accept this employment, the judge further asks if he/she may appear as a conflict defender before other part-time judges in the same county who are permitted to practice law.

         A judge’s judicial duties take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]). Nonetheless, a part-time judge “may accept private employment or public employment in a federal, state or municipal department or agency, provided that such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties” (22 NYCRR 100.6[B][4]). Moreover, a part-time attorney judge is permitted to practice law, subject to certain limitations (see 22 NYCRR 100.6[B][1]-[5]). Of particular relevance here, a part-time judge:

shall not practice law in the court on which the judge serves, or in any other court in the county in which his or her court is located, before a judge who is permitted to practice law, and shall not act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto (22 NYCRR 100.6[B][2]).

         The Committee has advised that a judge must be cautious when his/her non-judicial employment may appear to align the judge with law enforcement or defense functions, as such a position may cast doubt on the judge’s capacity to act impartially (see 22 NYCRR 100.4[A]) and thereby interfere with proper performance of judicial duties (see Opinions 08-22; 05-88; 98-55). The Committee has also stated that a part-time judge may not serve as administrator of the assigned counsel program or conflict defender’s office of the same county in which his/her court is located, but may accept otherwise permissible appointments from the conflict defender’s office (see Opinions 09-178; 05-88).

         Here, the judge is not serving in any administrative capacity in a conflict defender’s office but is, in effect, more akin to a court-appointed 18-B attorney, albeit salaried by the county rather than paid by voucher.

A part-time judge who is an attorney may serve as an 18-B attorney before full-time judges and non-lawyer part-time judges (except those in the judge’s own court) within the same county in which the judge’s court is located (see Opinions 12-77, 99-97; 91-86).

         Therefore, this judge may accept employment by the county as a salaried conflict defender and, as such, he/she may accept assignments from full-time judges and non-lawyer part-time judges before whom he/she is permitted to appear (see id.). However, within the county in which the judge’s court is located, the judge may not appear before any part-time judge who is permitted to practice law, nor may the judge appear before any judge of his/her own court (see 22 NYCRR 100.6[B][2]; Opinion 09-06). On its face, the rule contains no exception for judges who are appearing by appointment on behalf of indigent defendants.

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         ¹ These lawyers are each employed by the county, and act independently of each other; they are not part of a conflict defender’s office.