July 17, 2009
Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).
Dear Judge :
This responds to your inquiry (09-53) in which you ask several questions about the ethical propriety of representing members of various law enforcement agencies in their private legal affairs and whether you may sit on a screening panel. These questions will be addressed seriatim.
First, you inquire whether there are any prohibitions to your continued private representation of various police officers in their private capacities. This Committee has previously addressed this issue in Opinion 94-71, which is enclosed for your convenience.1 Please be aware that in those cases as described in Opinion 94-71, where disqualification is subject to remittal, it is the Committee’s view that remittal would not be available if one of the parties were self-represented (see Opinions 08-165 and 04-100, enclosed for your convenience). Moreover, if, as a result of representing these police officers, you must disqualify yourself so frequently that such extra-judicial employment interferes with your ability to perform your judicial duties properly, you must forego either your legal work for police officers or your judicial position (see Opinion 92-63, enclosed for your convenience).
In questions two and eight, you ask whether, if you are permitted to represent these officers, what disclosure, if any, must be made when they are involved in a proceeding in the City Court in which you preside. This issue is also addressed in Opinion 94-71 (see also Opinion 89-88, enclosed for your convenience).
In question three, you ask whether there is any distinction between those members of the police department who serve on the police force for the same city where you preside and who appear in your court regularly, and those employed by other police agencies who appear in your court with far less regularity. In the Committee’s view, there is no distinction between the two. The same prohibitions as are set forth in Opinion 94-71 would apply.
In question four, you ask whether you may represent a member of the sheriff’s department who does not appear regularly in your court, i.e., an administrator such as a sheriff or an undersheriff.
The answer to this and to question one are the same.
In question five, you inquire whether your partner may continue to represent these police officers. The same rules of disqualification and disclosure as set forth in Opinion 94-71 would apply to you if your partner currently represents or has previously represented a police officer in a personal matter (see also Opinion 09-19, enclosed for your convenience).
In question six, you inquire whether you may retain the services of local police officers in their capacities as part-time business employees, such as process servers or construction workers.
The Rules Governing Judicial Conduct prohibit a judge from engaging in financial and business dealings that “involve the judge in frequent transactions or continuing business relationships with ... persons likely to come before the court on which the judge serves” (22 NYCRR 100.4[D][c]).
In question seven, you inquire whether you and your partner may continue to represent the families of these police officers.
The Committee cannot answer this question because it is vague and subject to multiple factual variations.
Question eight is answered above with question two.
In question nine, you ask whether you may sit on a screening panel to interview candidates for appointment to the position of Conflict Public Defender or a similar screening panel. The Committee has previously found that a full time judge may serve on such a screening panel (see Opinions 08-16 and 04-131, enclosed for your convenience). A part-time judge is subject to fewer restrictions than a full-time judge (see 22 NYCRR 100.6[B]). Therefore, there would be no prohibition to your sitting on such a screening panel.
Very truly yours,
George D. Marlow
Justice of the Supreme Court
122 NYCRR 100.3(C), referred to in this Opinion, has been replaced by 22NYCRR 100.3(F).