September 12, 1989
Digest: Representation by a part-time town justice who is a lawyer of a landowner-client in the sale of land to the justice's municipality would create the appearance of impropriety on the part of the town justice-attorney.
Rules: 22 NYCRR 100.2(a) and 100.5(h); Code of Judicial Conduct, Canon 2.
A part-time town justice who also is an attorney in private practice, asks whether a justice may represent a landowner in the sale of property to the municipality in which the justice sits. The municipality is represented by its own counsel. The town justice is not a member of the governing board of the municipality.
“A part-time judge is permitted to practice law and may accept private employment . . . provided that such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge's duties” (22 NYCRR 1OO.5[h]). 22 NYCRR 100.2(a) provides that “a judge shall conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the Judiciary.”
Although a town justice is an officer of the (second class) town (Town Law §20), since he does not sit on its governing board, no direct conflict of interest is apparent. Moreover, the representation is not directly incompatible with the judicial office (see, Opinion 88-20) since the justice-attorney does not by such representation practice law in the court in which he acts as town justice (see, NYCRR 10O.5[f]).
However, because of possible attendant publicity in connection with the sale of the property to the municipality, representation of the vendor by the town justice may create in the minds of some inhabitants of the municipality an appearance of impropriety on the part of the justice.
Under the circumstances, the Committee concludes that such representation would create a perception of impropriety and since “the judicial duties of a judge takes precedence over all his other activities” (Canon 3, Code of Judicial Conduct), such representation should be avoided.