Can an assistant public defender appear in a town court where a relative or law partner is the part-time judge, and is the disqualification imputed to the whole office?

Plain-English summary

A county public defender asks about two staff members and a part-time town court judge. One part-time assistant public defender is the judge's first cousin and law partner and works out of the shared law office. A full-time assistant public defender is the judge's son-in-law and works only out of the public defender's office.

The opinion analyzes the question under Rule 8.4(f), which bars a lawyer from knowingly assisting a judge to violate the rules of judicial conduct or other law. The committee cannot decide questions of law but points to Judiciary Law § 471 (a judge's law partner may not practice in the judge's court) and the Rules of Judicial Conduct, including RJC § 100.6(B)(3) (a part-time judge may not let partners or associates practice in the judge's court) and the relationship-based disqualification and remittal provisions of RJC §§ 100.3(E)(1)(e) and 100.3(F).

For the cousin-law-partner, the opinion concludes that because § 471 appears to bar him and RJC § 100.6(B)(3) carries no remittal, he may not represent office clients in that town court, even though his fourth-degree cousin relationship might otherwise allow remittal. For the son-in-law, § 471 does not appear to apply because he is not in law business with the judge; his second-degree relationship triggers disqualification with a remittal option, so he may not appear before the court but may work on those matters outside the courtroom if the prosecutor and defendant agree the judge need not be disqualified and the judge believes he can be impartial. Following N.Y. State 1115 (2017) and a long line of opinions, the analysis rests on Rule 8.4(f). Finally, the opinion holds these disqualifications are not imputed under Rule 1.10(a), because that rule imputes only conflicts arising under Rules 1.7, 1.8, and 1.9 with current or former clients, not Rule 8.4(f) disqualifications, and clarifies that contrary-seeming language in Opinion 1115 was specific to its facts.

In practice

Under this opinion, a public defender's office must keep a lawyer who is the part-time judge's law partner out of that judge's court entirely, and a lawyer related to the judge in the second degree out of the courtroom, though the latter may handle out-of-court work where remittal under RJC § 100.3(F) is available. Per the opinion, because these bars flow from Rule 8.4(f) rather than client conflicts under Rules 1.7 through 1.9, Rule 1.10(a) does not impute them to the rest of the office, which may continue to appear in the town court.

Common questions

Q: Can a lawyer who is a part-time judge's law partner appear in that judge's court?

A: Per the opinion, no. Judiciary Law § 471 and RJC § 100.6(B)(3) appear to bar it with no remittal, so appearing would assist a judicial-conduct violation under Rule 8.4(f).

Q: What about a lawyer who is the judge's son-in-law but not a law partner?

A: Per the opinion, he may not appear before the court, but because his second-degree relationship allows remittal under RJC § 100.3(F), he may work outside the courtroom if the parties and the judge agree the judge need not be disqualified.

Q: Is the disqualification imputed to the whole public defender's office?

A: Per the opinion, no. Rule 1.10(a) imputes only client conflicts under Rules 1.7, 1.8, and 1.9, not disqualifications based on Rule 8.4(f).

Background and rules framework

The opinion interprets New York Rule 8.4(f) (assisting a judge's violation of judicial-conduct rules or other law) and Rule 1.10(a) (imputation of client conflicts under Rules 1.7, 1.8, 1.9), read against Judiciary Law § 471 and the Rules of Judicial Conduct (22 NYCRR Part 100). Rule 8.4 and Rule 1.10 correspond to ABA Model Rules 8.4 and 1.10.

Citations and references

Rules of Professional Conduct:

• New York Rules of Professional Conduct 1.7, 1.8, 1.9, 1.10(a), 8.4(f)
• ABA Model Rules 8.4, 1.10, 1.7, 1.8, 1.9 (analogues)

Statutes:

• New York Judiciary Law § 471 (a judge's law partner may not practice in the judge's court)
• Rules of Judicial Conduct, 22 NYCRR §§ 100.3(E)(1)(e), 100.3(F), 100.6(B)(3)

Other opinions cited:

• N.Y. State 1115 (2017): public defender office and a member who is a part-time judge
• N.Y. State 29 (1966), 65 (1967), 497 (1978), 701 (1998): partners and associates of part-time judges

See also

• NY State Bar Op. 1247: Departments as Separate Clients
• CA Op. 2002-158: Public Defender Alternate Office Conflicts
• CA Op. 2001-156: City Attorney Conflicts and Constituents

Source

• Landing page: https://nysba.org/ethics-opinion-1243/