Joint Opinion 90-59 & 90-65
Digest: A part-time judge may not represent legal clients before the town planning board within the judge’s jurisdiction.
Rules: 22 NYCRR §§100.2 (a); 100.5
Part-time judges, who are also practicing attorneys, inquire whether it would be proper to represent private clients before the Planning Board of the town within the judges’ jurisdiction. The judges’ courts have jurisdiction over zoning and building code violations, but not over planning board matters.
The powers of planning boards are contained in Sections 274 and 274-a of the Town Law, and include the power to approve site plans, changes in the lines of existing streets and highways, and to determine the location of buildings. Pursuant to these laws, the planning board is inherently involved in the zoning and building procedures of the town. Because the planning board has significant influence over the uses of land, building and zoning regulations, its decisions frequently are subject to community interest and controversy. Thus, a judge representing a private client before the planning board may become involved in a controversial and public matter, which could reflect unfavorably on the judge’s judicial office.
Although a part-time judge may practice law [22 NYCRR 100.5 (f)], it must be done in a manner to avoid the appearance of impropriety [22 NYCRR 100.2 (a)], and any interference with judicial duties. [22 NYCRR 100.5]. A part-time judge’s representation of a client in a controversial matter before the planning board of the same town where he serves as judge, may lead to speculation, although unfounded, of political influence and may appear improper.
Therefore, in accordance with this committee’s Opinions 89-44 and 89-60, judges should not represent clients before the planning board within the jurisdiction served by the judges’ courts.