July 15, 2020
Your inquiry (20-48) asks if you, a part-time lawyer judge, may continue to handle criminal and traffic defense matters as an attorney in the same county, given that the prosecutors in those cases may also appear in your court.
As you know, you must not practice law before another part-time lawyer judge in the same county and must not handle any matters that originate in your court (see generally 22 NYCRR 100.6[B]-; Judiciary Law §§ 16-17). However, as we recognized in Opinion 93-73:
It is a common practice for justices who are permitted to practice law to be adversarial in their private practices against district attorney’s 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.
Moreover, this remains true even when a part-time lawyer judge serves as 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” (Opinion 09-123/09-143).
As always, if you conclude you have a personal bias or prejudice concerning a particular case before you, or if you conclude your impartiality might reasonably be questioned under the specific circumstances, you must disqualify yourself from that case.
Enclosed for your review are Opinions 14-179, 09-123/09-143, 93-73, and 92-40.
Very truly yours,
George D. Marlow, Assoc Justice
Appellate Div., First Dept. (Ret)
Hon. Margaret T. Walsh
Supreme Court Justice