Opinion: 01-87

October 25, 2001

Digest:  A part-time judge is not prohibited from accepting employment as an investigator for the Public Defender's office of a county which is not the county in which the judge's court is located, provided certain limitations and conditions are adhered to by the judge.

Rule:  22 NYCRR 100.2; 100.3(E)(1); 100.4(A)(4);
           100.6(B)(4); Opinions 90-1 (Vol. V);
           91-127 (Vol. VIII); 92-63 (Vol. IX); 99-80.


            A part-time town court judge asks whether it is ethically permissible to work as an investigator for the county Public Defender's office of a county which is not the county in which the judge's court is located.

            At issue is section 100.6(B)(4) of the Rules Governing Judicial Conduct which provides that 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).

            The Committee has previously advised that a part-time judge may be employed as an investigator for attorneys retained by the Public Defenders office in the judge's county. Opinion 99-80. While, here, the inquirer would be an employee of a Public Defender's office, we do not believe that the difference in formal status warrants a different result. And it is not insignificant that the Public Defender's office involved is not within the county where judge's court is located, since that circumstance obviously limits the occasions for possible conflict. Accordingly, we conclude that it is ethically permissible for a part-time judge to work as an investigator for the Public Defender's office that is located in a county other than that in which the judge presides.

            However, in order to avoid any appearance of impropriety (22 NYCRR 100.2) or situation which might cast doubt on the judge's impartiality (22 NYCRR 100.3[E][1], 100.4[A][4]), certain limitations must be observed. The judge should not work on any matters that might fall within the jurisdiction of the judge's court. If such a matter should come before the judge's court, the judge must exercise recusal. 22 NYCRR 100.3(E)(1); Opinions 90-1 (Vol. V); 99-80. In addition, the judge should exercise recusal if any attorney from the Public Defender's office for whom the judge is providing investigative services appears in the judge's court. Opinion 91-127 (Vol. VIII); 92-63 (Vol. IX). All of these are circumstances that would give reason to question the judge's independence and impartiality and thus must be avoided.