Can a part-time judge with criminal jurisdiction represent private clients in criminal matters?

Plain-English summary

The committee revisited a question it had answered in N.Y. State 228 (1972), where it concluded that a part-time judge with criminal jurisdiction could not engage in private criminal practice because doing so would violate Canon 9 (appearance of impropriety): the public might suspect the judge was using the prestige of the office to build a private practice, weakening confidence in the judiciary's impartiality. That earlier opinion had itself overruled two prior opinions, N.Y. State 57 (1967) and 150 (1970).

The committee noted that two years after Opinion 228, the Administrative Board of the Judicial Conference adopted the Rules Governing Judicial Conduct, now the Rules of the Chief Administrator of the Courts, under authority of the State Constitution. Section 33.5(f) of those rules (22 NYCRR) addresses part-time judges' practice of law directly: it bars practice in the judge's own court and in any other court in the county presided over by a judge who is also permitted to practice law, but does not prohibit criminal practice generally. Reading the rule so that matters not prohibited are implicitly permitted, the committee saw that the rule appeared to allow private criminal practice, so long as the courts involved are presided over by full-time judges, creating an inconsistency with Opinion 228's flat ban.

The committee resolved the conflict in favor of the specific rule. It gave three reasons: a specific, later enactment takes precedence over a general one, and Opinion 228 rested on a general appearance-of-impropriety sense rather than any specific Code prohibition; administrative policy for the judiciary is the particular province of the Rules and the Chief Administrator; and the committee had long recognized that a broad ban might discourage qualified lawyers from serving as part-time judges, the very problem section 33.5(f) was enacted to ameliorate. It answered the question in the affirmative, to the extent permitted by section 33.5(f) and any refinements adopted within the four departments of the Appellate Division, while noting that questions of disqualification in particular situations were not encompassed by the opinion.

Currency note

This opinion was issued in 1980, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009. Canon 9's "appearance of impropriety" standard was not carried forward into the Rules of Professional Conduct. The part-time judge's practice of law is now governed by the Rules Governing Judicial Conduct (22 NYCRR Part 100), which have been renumbered and amended since this opinion. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a part-time judge in 1980 take private criminal cases in New York?

A: To the extent the Rules of the Chief Administrator allowed. The committee held section 33.5(f) permitted criminal practice it did not prohibit, so long as the courts involved were presided over by full-time judges.

Q: Didn't an earlier opinion ban this outright?

A: Yes. N.Y. State 228 (1972) had barred part-time judges with criminal jurisdiction from private criminal practice under Canon 9. Opinion 520 modified that result in favor of the specific judicial-conduct rule.

Q: Why did the committee follow the rule over its own earlier opinion?

A: Because a specific, later enactment takes precedence over a general one, administrative policy for the judiciary is the province of the Rules, and the flat ban had discouraged qualified lawyers from serving as part-time judges.

Background and rules framework

The opinion weighed Canon 9 and DR 9-101(A) of the Code of Professional Responsibility, which the committee had earlier read to bar the practice, against section 33.5(f) of the Rules Governing Judicial Conduct (22 NYCRR), which specifically delimits part-time judges' practice. The committee treated the two bodies of law as supplementing each other but gave precedence to the specific judicial-conduct rule. The conduct is now governed by the Rules Governing Judicial Conduct; the nearest Model Rule touchpoint is Rule 8.4 (misconduct).

Citations and references

Rules of Professional Conduct:

• MR 8.4 (misconduct)
• NY Canon 9, EC 9-2, EC 9-6, DR 9-101(A)

Regulations:

• 22 NYCRR 33.5(f) (Rules Governing Judicial Conduct)
• Appellate Division, Third Department Miscellaneous Rules sec. 839.5

Other opinions cited:

• N.Y. State 228 (1972): the earlier flat ban, modified here
• N.Y. State 57 (1967) and 150 (1970): earlier opinions

See also

• NY State Bar Op. 526: Part-time assistant DA and probation officer
• NY State Bar Op. 518: Part-time public defender in private practice

Source

• Landing page: https://nysba.org/opinion-520/