Opinion 90-165

January 24, 1991

Digest:         The same ethical restrictions that apply to part-time judges apply to acting part-time judges as well; a deputy town attorney may not practice before a lawyer-justice in a town court in a matter where the town attorney is attorney of record, and also is an acting village justice in a village court in the county; these restrictions do not preclude a judge from presiding over criminal cases where the town police officer, although not a prime witness, processed the arrest.

Rules:          22 NYCRR 100.5(f)

Opinion:

         An acting part-time village justice, who works only during the absence or disability of the regular part-time justice, inquires whether section 100.5(f) of the Rules of the Chief Administrator applies to acting judges, and whether certain restrictions apply because of the judge’s other position as town attorney.

         Section 100.5(f) restricts a judge who is permitted to practice law from practicing in other courts in the county presided over by judges who are permitted to practice law. The Rules of the Chief Administrator apply to all judges, whether acting or-permanent. Thus, the same restrictions apply to the acting part-time judge as to the regular part-time judge.

         The deputy town attorney may practice in the town court, where the town attorney is not a sitting justice, before a lay justice of that court, but may not practice before a lawyer-justice of the court in a proceeding where the town attorney, who is an acting village justice in a village court in the county, is attorney of record in the proceeding.

         In response to another question posed by the justice, where the part-time justice also is the town attorney, the justice is not precluded from presiding over a criminal matter where the prime witness is the crime victim, even if the town police officer processed the arrest.

         The judge’s remaining questions concerning pleas and where the part-time justice also is the town attorney, the plea bargains present questions of law rather than questions of judicial ethics. This Committee does not answer questions of law.