The New York Advisory Committee on Judicial Ethics has issued Opinion 26-21, determining that a part-time judge may not hold outside employment as an assistant attorney general within the Attorney General’s Extreme Risk Protection Order (ERPO) Unit. The opinion addresses a query from a part-time judge regarding the ethical implications of maintaining such dual employment.

The committee’s decision rests on two primary concerns. First, they cite a previous advisory opinion (22-135) stating that a part-time village justice cannot simultaneously serve as a deputy town attorney for another town within the same county, assisting the town police in seeking ERPOs. The committee views seeking ERPOs as quasi-prosecutorial, especially given that these petitions often accompany criminal charges and involve advocating for restrictions on an individual’s constitutional rights. Aligning with law enforcement interests in this manner could create an appearance of impropriety and compromise the judge’s impartiality.

The second concern arises from the potential conflict of interest due to the judge’s proposed responsibilities as an assistant attorney general. The selected attorney would represent the state police in obtaining ERPOs, which are civil court orders prohibiting dangerous individuals from purchasing or possessing firearms. The state police are often involved in cases within the judge’s court, either as arresting officers or as issuers of Vehicle and Traffic Law tickets. The committee noted that this situation would likely require the judge’s disqualification in a significant portion of their caseload, thus hindering their ability to perform judicial duties.

The opinion references several relevant rules and prior opinions, including 22 NYCRR 100.2, which emphasizes avoiding impropriety, and 22 NYCRR 100.2(A), which stresses promoting public confidence in the judiciary’s integrity and impartiality. It also cites 22 NYCRR 100.6(B)(1)-(4), which outlines limitations on a part-time attorney judge’s ability to practice law and accept public employment.

The committee ultimately concluded that the proposed position is ethically incompatible with judicial office, as it would be too closely aligned with law enforcement interests and create an appearance of partiality.