March 10, 1994
Digest: A town justice may not represent private clients in certiorari proceedings against the town where the justice's court is located.
Rules: 22 NYCRR §§100.5(h); 100.2 (a)
A town justice who is a practicing attorney inquires whether it is a conflict if the justice handles tax certiorari proceedings against the town in which the justice's court is located.
Rule 100.5(h) of the Rules of the Chief Administrator provides that:
"a part-time judge 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".
The position of town justice is inconsistent with prosecuting tax certiorari proceedings on behalf of private clients against the town in which the justice's court is located and such representation could project an appearance or perception of impropriety in violation of Rule 100.2(a). (See Opinion 88-90, Volume 11; Opinions 89-59 and 89-85, Volume IV; Joint Opinion 89-44, 89-60, Vol. V., and Joint Opinion 90-59,90-65, Vol. V.) That appearance or perception is heightened by the fact that a town justice is an officer of the town (See Town Law §§20,, and ) and thus should not represent private clients suing the town.