Joint Opinion

March 7, 2002

Digest: Whether a full- time judge as a member of the New York Guard, having been appointed to that
position by the Governor, holds a  public office or trust, presents a question of State constitutional law
that should be determined before the question of whether, under the circumstances presented, the
rendering of legal advice and performing other related services on behalf of reservists and National
Guard members being called to active duty, constitutes a prohibited practice of law.

Rules: NY Const. Art. 6 §20(b)(1), (4);  22 NYCRR 100.4(G).


        Two justices of the Supreme Court, in separate inquiries, raise the same question. Both judges serve in Civil and Military Affairs units of the New York Guard, which is a component of the New York State Organized Militia. Their units are presently assigned the mission of providing legal assistance to National Guard troops, in one instance, and Marine Corps reservists, in the other, who have been ordered to active duty. Such assistance would entail preparation of wills, powers of attorney, health proxies, guardianship designations, and advice concerning the protections afforded active duty military personnel under the New York State Military Law and the federal Soldiers and Sailors Civil Relief Act, 50 USCA App. §501, et. seq. Both judges ask whether such service constitutes the practice of law, which full-time judges are prohibited from engaging in under section 100.4(G) of the Rules Governing Judicial Conduct. 22 NYCRR 100.4(G); also, NY Const. Art. 6, §20(b)(4).

        The Committee recognizes the importance of the question in light of the current mobilization of  reservists and National Guard troops, as well as the fact that apparently other judges in New York serve in similar capacities. Nevertheless, it appears that there is a preliminary issue that should be resolved before the particular question posed can be addressed. The organization in which the inquirers serve is the New York Guard, which is a component of the New York State Organized Militia. As stated above, the judges have been appointed to their respective positions in the New York Guard by the Governor. This raises the question of whether by virtue of such appointment the positions held constitute a "public office or trust" within the meaning of Article 6, §20(b)(1) of the New York Constitution. It is that provision of the State Constitution that forbids Supreme Court justices and most other full-time judges from holding any other public office or trust. And although there is an exception for judges who are members of the armed forces of the United States or the State of New York that exception seems to apply to those who are on active duty.

        Thus, it appears that a question of state constitutional law, not judicial ethics, must first be determined. In this particular instance, the Committee does not believe it is the appropriate body to make a definitive determination, and perhaps the inquirers might consider seeking an opinion of the Attorney-General on the question of whether their positions in the New York Guard constitute a prohibited public office or trust within the meaning of Art. 6, §20(b)(1) of the State Constitution. If an opinion is rendered that the positions held do not contravene the constitutional provision, then the Committee would address the question of whether the services being provided constitute a prohibited practice of law as contemplated by section 100.4(G) of the Rules.