March 8, 2018
This responds to your inquiry (17-183) asking whether, after taking the bench as a part-time justice, you may continue to serve as a full-time deputy county attorney assigned to the Family Court. Your county attorney responsibilities include handling juvenile delinquency matters pursuant to article 3 of the Family Court Act.
The Rules Governing Judicial Conduct provide that a part-time justice, subject to certain limitations, may engage in the practice of law (see 22 NYCRR 100.6[B]) and may accept public employment “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]).
The Committee has previously advised that a town justice who is permitted to practice law may serve as a full-time or part-time county attorney or assistant county attorney provided that such position does not involve quasi-prosecutorial duties, such as handling juvenile delinquency or persons-in-need-of-supervision cases.1 Indeed, we have advised that “a judge should not be in the position of prosecuting such cases [and, therefore, a part-time judge] should not serve as an assistant county attorney if such service would require him or her to be involved in such cases” (Opinion 06-98).
Therefore, under the facts presented, you may not continue to serve as a deputy county attorney because your responsibilities include prosecuting juvenile delinquency matters.
Enclosed, for your convenience, are Opinions 15-205 and 15-09, which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Div., First Dep’t
Hon. Margaret T. Walsh
Family Court Judge
Acting Justice, Supreme Court
1Similarly, we have also advised that a part-time judge must not serve as Corporation Counsel if the judge personally or any attorney under his/her supervision will prosecute vehicle and traffic law charges or any other alleged violations of law involving peace officers.