October 31, 2012
This responds to your inquiry (12-134) asking whether it is ethically permissible for you to serve as town justice if the town where you preside retains your firm to represent the town in a state or federal court action.
A judge’s judicial duties must take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]). Therefore, a judge may not engage in activities that are incompatible with judicial office.
The Committee previously has advised that a part-time lawyer/judge may represent the municipality in which the judge presides in a matter that will not be heard in the judge’s court (see Opinions 98-117, 09-115). Therefore, it is ethically permissible for you to serve as town justice if the town where you preside retains your firm to represent the town in a state or federal court action.
Opinion 09-128 does not dictate a different result. There, the judge’s law firm served as counsel to the same village where the judge presided as opposed to representing the village in a particular case. In addition, a firm member was the village attorney. Consequently, the judge in Opinion 09-128 would have had to disqualify him/herself in all matters in which the municipality appeared as a party in the judge’s court. In contrast, you indicate that no attorney in your firm serves as town attorney or as counsel to any of the town’s boards or agencies.
Enclosed, for your convenience, are Opinions 09-115; 98-117; 93-111; and 09-128 which address this issue.
Very truly yours,
George D. Marlow,
Assoc. Justice (Ret.)
Appellate Division, First Dept.