Opinion 26-21

February 5, 2026

Digest:    A part-time judge may not maintain outside employment as an assistant attorney general with the Extreme Risk Protection Order Unit of the Attorney General’s office.

Rules:      22 NYCRR 100.2; 100.2(A); 100.6(B)(1)-(4); Opinions 22-135; 22-35; 18-50.

Opinion:

          A part-time judge asks if he/she may maintain outside employment as an assistant attorney general with the Extreme Risk Protection Order (ERPO) Unit.  As stated in the job posting, the Office of the Attorney General is charged with representing the New York State Police “in final ERPO hearings held in Supreme Courts throughout the state.”  The selected attorney will represent the state police “in obtaining ERPOs, civil court-issued orders … that prohibit people who are found to be dangerous to themselves or others from temporarily purchasing or possessing a firearm, rifle, or shotgun.”  In addition to “conducting witness interviews and preparing for testimony, evidentiary hearings, and other hearing-related tasks,” the attorney will also be responsible for “identifying and gathering relevant records and preparing witnesses in a compressed timeframe.”  The judge advises that in “about 1/3 of the cases” in his/her court, the state police “are the arresting officer or issued a VTL ticket.”

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  A part-time attorney judge may practice law, subject to certain limitations (see 22 NYCRR 100.6[B][1]-[3]), and may accept public employment in a 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]).

          Here, we conclude the proposed position is ethically incompatible with judicial office for two distinct reasons.

          First, we have advised that a part-time village justice may not, in their role as deputy town attorney for another town in the same county, assist the town police department in seeking Extreme Risk Protection Orders (see Opinion 22-135).  As we explained (id.):

Given that ERPO petitions often accompany criminal charges and an attorney seeking an ERPO is necessarily “advocat[ing] restrictions on the respondent’s ... constitutional rights” (Opinion 22-35), they can readily be seen as quasi-prosecutorial in nature.  We therefore conclude that assisting the town police department with [ERPO petitions] would be too closely aligned with law enforcement interests and would create an appearance of impropriety and public perception of partiality incompatible with judicial office.

          Here, the same principles apply.  Assisting the state police with ERPO litigation would be too closely aligned with law enforcement interests and would create an appearance of impropriety and public perception of partiality incompatible with judicial office (see id.).  

          Second, we have advised that a part-time judge may not simultaneously serve as an assistant county attorney, where his/her specific responsibilities involve representation of the district attorney’s office, the public defender’s office and the sheriff’s department, all of whom regularly appear in the judge’s court (see Opinion 18-50).  

          Here, too, the judge’s proposed responsibilities as an assistant attorney general would specifically include representation of the state police, who are involved in approximately one-third of the cases in the judge’s court, either as the arresting officer or as the issuer of a Vehicle and Traffic Law ticket.  In our view, “this would require the judge’s disqualification in a very significant percentage of the court’s caseload, thus interfering with the judge’s ability to perform his/her judicial duties” (id.), rendering the positions ethically incompatible.  

          Accordingly, the judge may not maintain outside employment as an assistant attorney general with the Extreme Risk Protection Order Unit of the Attorney General’s office.