Joint Opinion 09-123/09-143
June 3 - 4, 2009
Digest: Except as otherwise provided by the Rules Governing Judicial Conduct, a part-time lawyer judge may serve as the defense attorney in cases that are prosecuted by the same assistant district attorney who serves as the prosecutor in the part-time lawyer judge’s court.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(E)(1); 100.6(B)(1),(2); Opinions 08-178; 93-73 (Vol. XI).
A part-time lawyer judge and a supervising judge both ask whether it is ethically permissible for a part-time lawyer judge who presides in cases where an assistant district attorney represents the District Attorney's office to also appear in other courts as the same assistant district attorney's adversary.
A judge must avoid impropriety and the appearance of impropriety in all the judge's activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself in any proceeding in which the judge's impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]).
A part-time judge may practice law, but not in the court on which the judge serves, or in any other court in the county in which his/her court is located, before a judge who is permitted to practice law (see 22 NYCRR 100.6[B], ). Nevertheless, the judicial duties of a judge take precedence over all the judge's other activities (see 22 NYCRR 100.3[A]).
In Opinions 08-178 and 93-73 (Vol. XI), the Committee advised that there is no ethical impropriety in a part-time lawyer judge appearing as a defense attorney in a criminal case where the prosecutor represents the District Attorney for the county where the judge presides. In Opinion 93-73, the Committee stated:
It is a common practice for justices who are permitted to practice law to be adversarial in their private practices against district attorneys' offices, whether it be in local courts presided over by non-attorney justices, county courts, supreme courts or appellate courts, and such practice clearly is permitted without the attorney-justice having to recuse himself or herself from presiding over matters involving the District Attorney's Office in his or her own jurisdiction.
However, if the inquiring justice, for any reason, has a personal bias or prejudice concerning the district attorney's office, or if he or she is of the opinion that his or her impartiality reasonably might be questioned in the particular circumstances, then he or she must recuse himself or herself from matters involving that party, be it the district attorney's office or any other party. [NYCRR Section 100.3 (c)(1)].1
The facts in the present inquiry do not warrant a different result. But, if a judge must disqualify him/herself so frequently that the judge's law practice interferes with the performance of his/her judicial duties, then the judge may not continue to serve as defense counsel in cases involving the assistant district attorney who also appears in the judge's court (see 22 NYCRR 100.3[A]).
1 The Rules Governing Judicial Conduct were amended in 1996. Section 100.3(c)(1) is now section 100.3(E)(1).