Opinion 14-28

March 13, 2014

Digest:         A part-time judge may serve as counsel to a nearby town and, in such capacity, provide legal advice to the town board, attend town board meetings, and defend the town in tax certiorari proceedings brought in Supreme Court.

Rules:          22 NYCRR 100.2; 100.2(A); 100.6(B)(2)-(4); Opinions 13-180; 12-134; 10-54; 09-235; 01-20 (Vol. XIX); 98-117 (Vol. XVII); 98-30 (Vol. XVI); 97-49 (Vol. XVI); 93-111 (Vol. XI); 93-33 (Vol. XI); 90-109 (Vol. VI).

Opinion:

       The inquiring part-time attorney/judge asks whether he/she may continue to serve as counsel to a nearby town. The judge explains that he/she is not the town attorney, but instead enters into an annual retainer with the town to provide advice to the town board on “contracts, highway law, zoning and planning matters, bonds and financing.” The judge occasionally defends the town in tax certiorari proceedings brought in Supreme Court but does not prosecute cases in any court on behalf of the town. Indeed, the judge advises that the town “has hired another attorney to handle” any such prosecutions. The judge also advises that, as counsel to the town, he/she attends one or two town board meetings per month.

       A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A part-time judge, unlike a full-time judge, may accept public employment as long as it is compatible with judicial office and does not interfere with the proper performance of the judge’s duties (see 22 NYCRR 100.6[B][4]) and may practice law, subject to certain limitations (see 22 NYCRR 100.6[B][2]-[3]). For example, a part-time judge may not practice law before any judge in the court on which he/she serves, or before another part-time attorney/judge in his/her county (see 22 NYCRR 100.6[B][2]).

       The Committee has advised that a town judge may be the town attorney for a town other than that in which he/she presides, provided he/she has no prosecutorial responsibilities (see Opinions 13-180; 09-235). A part-time lawyer/judge may also represent the municipality where he/she presides on a specific case that will not be heard in the judge’s court (see Opinion 12-134),e.g., a part-time village justice may represent the same municipality as defense counsel in a federal civil rights action (see Opinion 98-117 [Vol. XVII]), and a part-time city court judge may represent the city in a contract matter (see Opinion 93-111 [Vol. XI]).

       Here, the inquiring part-time judge’s services as counsel to a nearby town, where the judge does not preside, will be limited to giving legal advice to the town, defending it in Supreme Court, and attending town board meetings. The judge will not prosecute cases for the town and will not appear in any court in the same county where part-time lawyer/judges preside. Accordingly, the Committee concludes the Rules Governing Judicial Conduct allow this judge to continue the described legal employment (see e.g. Opinions 13-180; 09-235; 12-134; [Vol. XIX]; 98-117 [Vol. XVII]; 93-111 [Vol. XI]; 22 NYCRR 100.6[B][2]-[4]; cf. Opinions 01-20; 98-30 [Vol. XVI]; 93-33 [Vol. XI]; 90-109 [Vol. VI]). Moreover, as counsel, the inquiring judge may attend local town board meetings (see Opinion 97-49 [Vol. XVI]). Finally, he/she must ensure his/her outside employment does not conflict or interfere with his/her judicial duties (see 22 NYCRR 100.6[B][4]; Opinion 10-54).