Can a part-time assistant public defender whose cousin and law partner is a part-time town judge appear in that town court or at arraignments transferred there?

Plain-English summary

The inquirer is a county Public Defender. One of his part-time assistant public defenders (APDs) is also a partner in a private law firm whose other partner is the APD's cousin and a part-time judge in the local town court (which also has a non-lawyer co-judge). The APDs and the town judges both take turns in a centralized arraignment part as counsel and bench, respectively. The APD never appears as counsel at first appearance when his cousin or the co-judge is presiding, but sometimes appears at arraignment for a case that is then transferred to his cousin's town court, where another APD takes over.

On the first question, the opinion holds the APD plainly cannot appear in the town court where his cousin and the cousin's co-judge preside. Drawing on N.Y. State 1243, it explains that a part-time judge may not permit law partners to practice in the judge's court (22 NYCRR 100.6(B)(3)), and Rule 1.0(h) treats the partners as a firm. Under Rule 8.4(f), a lawyer may not knowingly assist a judge in violating the rules of judicial conduct, so the APD's appearance in that court would cause his cousin to violate the judicial-conduct rules and therefore violate Rule 8.4(f). (The opinion notes related provisions such as Judiciary Law §§ 16 and 471 are outside its jurisdiction.)

On the second question, the opinion concludes the limited arraignment role is permissible. The APD may appear in the centralized arraignment part for the sole purpose of arraignment when neither his cousin nor the co-judge is presiding, even if the case will later be transferred to the cousin's town court, as long as another APD takes over after the arraignment and the APD never appears before his cousin. Because he does not appear before his cousin or assist any judicial-conduct violation, that limited representation does not violate Rule 8.4(f) (consistent with N.Y. State 1115).

In practice

Under this opinion, conduct that involves the APD appearing in the town court where his cousin/law-partner judge or that judge's co-judge presides is prohibited, because it would cause the judge to violate 22 NYCRR 100.6(B)(3) and § 100.2, making it a Rule 8.4(f) violation. Per the opinion, limited arraignment-only representation in the centralized arraignment part, when neither judge is presiding and another APD takes over after transfer, does not violate Rule 8.4(f).

Common questions

Q: Can a public defender appear before a town judge who is his law partner and cousin?

A: Per the opinion, no. Under Rule 8.4(f), the APD may not knowingly assist the judge in violating the judicial-conduct rules, and a partner appearing in the judge's court would cause such a violation under 22 NYCRR 100.6(B)(3).

Q: Does the firm relationship matter even if the cousin would recuse?

A: Per the opinion, yes. Rule 1.0(h) treats the partners as a "firm," and the judicial-conduct rules bar a judge's law partners from practicing in that court, so the bar reaches the APD as the judge's partner.

Q: Can the APD handle an arraignment for a case that will be transferred to the cousin's court?

A: Per the opinion, yes, if neither the cousin nor the co-judge is presiding at the arraignment and another APD takes over the case after transfer, so the APD never appears before his cousin.

Background and rules framework

The opinion interprets New York Rule 8.4(f) (a lawyer may not knowingly assist a judge in conduct violating the rules of judicial conduct or other law) and Rule 1.0(h) (the definition of "firm"), read against the Rules of Judicial Conduct in 22 NYCRR Part 100. Rule 8.4(f) corresponds to ABA Model Rule 8.4. The opinion treats the cited Judiciary Law sections as questions of law outside its jurisdiction.

Citations and references

Rules of Professional Conduct:

• New York Rules of Professional Conduct 1.0(h), 8.4(f)
• ABA Model Rule 8.4 (analogue)

Statutes and regulations:

• New York Judiciary Law §§ 16, 471 (noted as outside the committee's jurisdiction)
• 22 NYCRR 100.2; 100.3(F); 100.6(B)(2)-(3) (Rules of Judicial Conduct)

Other opinions cited:

• N.Y. State 1243 (2022): APD/judge-partner barred from the cousin's town court
• N.Y. State 1115 (2017): scope of Rule 8.4(f) and not causing a judge's violation

See also

• NYSBA Ethics Op. 1263: Part-Time Town Attorney at Arraignments
• NYSBA Ethics Op. 1272: Part-Time DSS Attorney Conflicts
• NYSBA Ethics Op. 1257: Former DA at the Defender Office

Source

• Landing page: https://nysba.org/ethics-opinion-1269-part-time-judge-part-time-public-defender/