The Advisory Committee on Judicial Ethics responds to written inquiries from New York state's approximately 3,600 judges and justices, as well as hundreds of judicial hearing officers, support magistrates, court attorney-referees, and judicial candidates (both judges and non-judges seeking election to judicial office). The committee interprets the Rules Governing Judicial Conduct (22 NYCRR Part 100) and, to the extent applicable, the Code of Judicial Conduct. The committee consists of 28 current and retired judges, and is co-chaired by the Honorable Debra L. Givens, an acting justice of the supreme court in Erie County, and the Honorable Lillian Wan, an associate justice of the appellate division, second department.

Digest: A part-time attorney judge who presides in a town court may represent a court officer assigned to a city court in the same county.

Rules: Judiciary Law § 16; 22 NYCRR 100.2; 100.2(A); 100.6(B)(2), (4); Opinions 18-137; 09-110.

Opinion: The inquiring town justice is a part-time attorney judge. One of the judge’s clients, a public sector labor union, has asked the judge to represent a union member in an employment disciplinary proceeding. The union member is a court officer who is employed by the Unified Court System and is assigned to a city court in the same county where the judge presides. The disciplinary proceeding will take place before a hearing officer appointed by the employer, pursuant to the union’s collective bargaining agreement with the Unified Court System.

A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A part-time judge may practice law, subject to certain limitations. For example, the judge must “not practice law in the court on which the judge serves” (22 NYCRR 100.6[B][2]), or “in any other court in the county in which his or her court is located, before a judge who is permitted to practice law” (id.). The judge also must “not act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto” (id.; see also Judiciary Law § 16 [judge must not practice law “in an action, claim, matter, motion or proceeding originating in” a court of which the judge a member]). More generally, a part-time judge’s extra-judicial employment must not be incompatible with judicial office or conflict or interfere with the proper performance of judicial duties (see 22 NYCRR 100.6[B][4]).

We have advised that a part-time attorney judge “may represent another part-time judge who presides in a different court” in a legal matter, even where the issues “involve the other judge’s court, court clerks, and the municipal council” (Opinion 09-110). Likewise, a part-time attorney judge may represent a full-time judge who presides in a different court in a disciplinary proceeding before the Commission on Judicial Conduct (see Opinion 18-137).

The inquiring judge’s prospective client is a Unified Court System employee who does not work in the judge’s court. Rather, he/she works in a city court within the same county. The representation will not take place in any court, but before an employer-appointed hearing officer. On these facts, we see no inherent impropriety or appearance of impropriety in the inquiring judge’s representation of a court employee in an employment disciplinary proceeding.

As always, our advice is limited to ethical issues arising under the Rules Governing Judicial Conduct; if there are any attorney ethics or legal issues concerning the proposed representation, we cannot address them.