Opinion 93-40

April 29, 1993

Digest:         A town justice may preside over a criminal case in which the defense attorney also is the town attorney for the same town which has employed the justice.

Rules:          22 NYCRR 100.3(c)(1)(i), (iii); 100.3(d)

Opinion:

         A town justice inquires whether he or she may preside over criminal matters where the defense attorney also is the town attorney for the same town which employs the justice. Further, the justice inquires whether this might appear to be a possible conflict of interest in the eyes of the prosecuting attorney.

         Section 100.3(c)(1) of the Rules of the Chief Administrator states:

A judge shall disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned, including, but not limited to circumstances where:

(i) the judge has a personal bias or prejudice concerning a party . . .

         A justice is not disqualified from presiding over matters merely because the defense attorney also is the town attorney. See Opinion 89-27 (Vol. III). In Opinion 89-27, this Committee found that “the town justices having been elected or appointed in the municipality and being on the municipal payroll does not, in and of itself, give rise to a disqualifying relationship when the municipality is a party in a lawsuit.” The same is true where the defense attorney too is employed by the town. Absent any special disqualifying factors, the town justice may preside over a matter where the defense attorney is the town attorney.

         Although there is no reason for the judge to be disqualified, the question whether to permit the town attorney to continue the representation involves a judicial decision concerning what may be a violation of professional ethics, which decision presumably could be the subject of an appeal. This Committee does not advise on questions of judicial decisions, but the inquiring judge may want to suggest that the attorney consult the New York State Bar Association’s Committee on professional Ethics to obtain an advisory opinion on the matter.