June 8, 2007
This responds to your inquiry (07-60) asking whether it is ethically permissible for you to serve simultaneously as a Town Justice for the town and as Village Attorney for a village within the same town. You have stated that, pursuant to your agreement with the village board, your village attorney position would not involve any court appearances, and, further, that there has only been one instance where the village was involved in litigation before the town court.
In Opinion 98-51 (Vol. XVI), the Committee advised that a town justice may not serve as village attorney for a village within the same town as, in the absence of a village court, “. . . all matters, civil and criminal, including zoning violations, are handled by the Town Court.” In Opinion 97-24 (Vol. XV), however, where the village had appeared in the Town Court on only one occasion in the previous three years, and the District Attorney or special counsel would appear on the village’s behalf in any proceeding the village attorney would bring in the Town Court involving a village local law or zoning violation, the Committee concluded that a town justice could also serve as a village attorney. Based on this Opinion, you may serve as a town justice and a village attorney without violating any ethics principles. The Committee, however, cannot and does not opine as to the legal compatibility of these two offices.
With respect to your request that the Committee confirm in writing that you may rely on this opinion and will not be subject to any disciplinary action in the event that some time in the future the Committee abandons this opinion, Judiciary Law section 212(2)(l) (iv) provides as follows:
Actions of any judge or justice of the uniform court system taken in accordance with findings or recommendations contained in an advisory opinion issued by the panel shall be presumed proper for the purposes of any subsequent investigation by the state commission on judicial conduct.