December 12, 1996
Digest: A county court judge may assign a part-time town justice, who is permitted to practice law, to practice in the County Court which is located in the same county as the town court.
Rules: 22 NYCRR 100.4(G); 100.6(B)(2), Opinion 88-135
A County Court judge asks whether it is permissible to assign a lawyer who is a part-time town judge in the same county to represent a defendant in a criminal case pending in the County Court.
At issue is the scope of Section 100.6(B)(2) of the Rules Governing Judicial Conduct which provides, in part, that a part-time judge shall not practice law in any “court in the county in which his or her court is located, before a judge who is permitted to practice law”.
County Court judges are full-time judges and therefore are not permitted to practice law (22 NYCRR 100.4[G]) . Thus, section 100.6(B)(2) is not a barrier to such an appointment since the attorney is permitted to practice law in the County Court (Opinion 88-135). The fact that the County Court is the first-level appellate court for proceedings commenced in the local courts within the county, does not constitute a bar to such an appointment. Of course, the lawyer-judge may not be assigned if the defendant had appeared before the said lawyer-judge for arraignment or otherwise.