Opinion: 97-126

November 13, 1997

Digest:  A part-time judge may accept employment as Deputy Counsel to the New York State Higher Education Services Corporation.

Rules:  22 NYCRR 100.3(E)(1), 100.6(B)(4).


            The question posed to the Committee is "[w]hether it is permissible for an elected, part-time, Town Justice to serve as Deputy Counsel to the New York State Higher Education Services Corporation ["HESC"]".

            Among the duties of the Deputy Counsel is the responsibility:

for supervision of staff attorneys and overall management of litigation concerning collections of past due student loans. Such duties will include: federal bankruptcy matters; assignment of hearing officers for, and general supervision of, the federal Administrative Wage Garnishment process; and creation of policy regarding litigation relative to the interpretation of federal and state law requirements. The performance of these duties may require court appearances, including general motion practice in State Supreme Court, Federal District Court and the U.S. Bankruptcy Court. In the past, HESC attorneys and counsel have also appeared in a number of city and local courts, including the New York Civil Court.

            At issue is section 100.6(B)(4) of the Rules Governing Judicial Conduct which states that a part-time judge:

(4) may accept private employment or public employment in a federal, state or municipal department or agency provided that such employment is not incompatible with judicial office and does not conflict or interfere with proper performance of the judge's duties.

            In the opinion of the Committee, the position of Deputy Counsel to HESC, as described, is not incompatible with the position of Town Justice and does not appear to conflict or interfere with the proper performance of the duties of a judge holding that office. However, should an HESC matter come before the Town Judge, there must be recusal. 22 NYCRR 100.3(E)(1).