November 20, 2015
This responds to your inquiry (15-194) asking, if you become a village justice, may you 1) continue to practice law as a solo practitioner in the same county where you will preside and 2) preside over cases when your former law partner appears.
As to the first question, a part-time judge who is permitted to practice law may not appear before another lawyer-judge who is permitted to practice law and who presides in the same county (see 22 NYCRR 100.6[B]). However, a lawyer-judge may practice law in another court within the same county where both a lawyer-judge and a non-lawyer judge preside, as long as his/her case is assigned at the outset to the non-lawyer judge and he/she will never appear in the case before the lawyer-judge. The part-time lawyer-judge may ask that a case be assigned to a judge before whom the lawyer-judge may appear if the request is made before the case is assigned to any judge, and this can be a standing request of the clerk of the court.
As for the second question, in order to avoid even the appearance of impropriety and to promote public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]), you may not preside in matters involving your former partner for a two-year period, starting from the time that all business and financial relationships between you and your former partner are entirely severed. Disqualification is subject to remittal, unless one of the parties is self-represented (see 22 NYCRR 100.3[F]; Opinion 15-82 [discussing the remittal process]) in which case you must recuse yourself.
Enclosed, for your convenience, are Opinions 15-82; 15-63; 14-57; 11-45; 10-203(B); 09-06; and 08-132; which address this matter.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)