June 3-4, 2009
Please Note: “Opinion 09-128 is partially modified to be consistent with [Opinion 19-31]. That is, a village justice whose law firm associate is the village attorney and whose firm is special counsel to the village, must either resign from the firm or resign his/her judgeship if there is any likelihood that village code matters will come before the court” (Opinion 19-31). Please see Opinion 19-31 for more details.
Digest: A part-time judge whose law firm associate is village attorney to the same village where the judge presides and whose firm is special counsel to the same village where the judge presides is disqualified from presiding in all cases where the village is a party. The judge may not transfer all such matters to his/her co-judge or another court solely for the purpose of permitting his/her law firm to continue serving as special counsel and his/her associate to continue serving as village attorney. Consequently, if the judge must disqualify him/herself so frequently that his/her membership in the law firm interferes with the performance of his/her judicial duties, the judge must resign from one of the two positions.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(E)(1); 100.6(B)(3); Opinions 08-31; 97-106 (Vol. XVI); 91-147 (Vol. VIII).
A part-time village justice recently was named partner in a law firm that is counsel to the same village where the judge presides. Another member of the firm is the village attorney and is principally involved in representing the village and various village boards and agencies. The firm also is special counsel to the village. According to the judge, the village attorney is not responsible for prosecuting matters in the judge’s court as the village employs a special prosecutor for that purpose. Nevertheless, the village attorney does supervise the village prosecutor and occasionally provides advice and counsel to the village prosecutor on cases involving village code violations. However, the judge advises that neither the village attorney nor the law firm prosecutes matters in his/her court.
The judge asks whether he/she may continue to serve as village justice given the relationship between his/her law firm and the village where he/she presides. The judge further asks whether his/her ethical obligations will be satisfied if his/her co-judge presides in all matters involving village code violations and he/she presides in all matters involving Vehicle and Traffic Law violations, ensuring that he/she does not preside in any matters where the village is a party.
A judge must avoid impropriety and its appearance (see 22 NYCRR 100.2) and must act at all times in a manner to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself in a proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]). A part-time judge may practice law, but shall not permit his/her partners or associates to do so in the court where he/she presides (see 22 NYCRR 100.6[B]). Nevertheless, a judge’s judicial duties must take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]).
The Committee previously has advised that a part-time judge’s law firm may not serve as attorney for the same municipality where the judge sits because the municipality would then be the firm’s - and therefore the judge’s - client, and he/she would have to disqualify him/herself in all matters involving the municipality (see Opinion 91-147 [Vol. VIII]). In the present inquiry, as the village is a party in all cases involving village code violations, the inquiring judge would have to disqualify him/herself from those cases. And, it is not permissible for the judge to transfer all such matters to his/her co-judge or another court solely for the purpose of permitting his/her law firm to continue serving as the town attorney (see Opinion 97-106 [Vol. XVI]).Therefore, if the judge must disqualify him/herself so frequently that his/her partnership in the law firm interferes with the performance of his/her judicial duties, the judge must resign from one of the two positions (see 22 NYCRR 100.3[A]; Opinion 08-31). Consequently, if the judge’s firm wishes to continue representing the village, the inquiring judge must either resign from the firm or resign from his/her judicial office (id.).