Opinion 91-32

April 25, 1991

Digest:         A judge need not recuse himself or herself or disclose a prior attorney-client relationship with a town board member in a case before the judge involving the town.

Rules:          22 NYCRR §100.3(d).

Opinion:

         Prior to election as a judge and while engaged in the private practice of law, the inquiring full-time judge represented several members of a town board in election law matters relating to their nominations. The judge asks whether it is proper to preside over cases involving the town, where the judge's former clients are town board members.

         Section 2 of the Town Law defines a town as ''a municipal corporation comprising the inhabitants within its boundaries, and formed for the purpose of exercising such powers and discharging such duties of local government and administration of public affairs as have been, or, may be conferred or imposed upon it by law."

         Section 52 of the Town Law states that "the town board of a suburban town shall be the legislative, appropriating, governing and policy determining body of the town and shall have and exercise all such powers and duties as are conferred or imposed upon it or are necessarily incidental thereto which are consistent with the provisions of this article;...".

         Section 65 of the Town Law provides:

Any action or special proceeding for or against a town, or for its benefit, and upon a contract lawfully made with it, or with any of its officers or agents authorized to contract in its behalf, or to enforce any liability created, or duly enjoined upon it, or upon any of its officers or agents for which it is liable, or to recover damages for any injury to any property or rights for which it is liable, shall be in the name of the town. The town board of any town may authorize and direct any town officer or officers to institute, defend or appear, in any action or legal proceeding, in the name of the town, as in its judgment may be necessary, for the benefit or protection of the town, in any of its rights or property. It shall be the duty of any office or officers so authorized and directed to institute said action or legal proceeding or to defend or appear therein, and the reasonable and necessary expense of such action or proceeding, or defense or appearance shall be a town charge. No such officer or officers, however, shall employ legal counsel except as directed by the town board.

         When the action before the judge involves the town, the judge need not disqualify himself or herself or affirmatively disclose the prior private attorney-client relationship with some of the town board members, although, of course, the judge should not conceal the relationship.