22 NYCRR 100.2(A); 100.6(B)(4);
Opinions 97-24; 89-82(Vol. V).
A part-time town justice who is permitted to practice law, inquires whether he/she may serve as village attorney for a village which is wholly encompassed within the town for which he/she is the justice. As the village has no local court, all matters, civil and criminal, including zoning violations, are handled by the Town Court. Ordinarily, the village attorney would prosecute such cases before the town justice. However, in light of the obvious conflict, the village is willing to hire a special prosecutor for every such occasion when a zoning or other village offense requires prosecution before the town justice.
Section 100.2(A) of the Rules Governing Judicial Conduct provides that a judge must avoid impropriety and the appearance of impropriety. At the very least there is the appearance of impropriety, even under the circumstances alluded to above. The inquiring attorney town justice acknowledges that he/she believes a conflict exists, but requests a full advisory opinion to place before the Village Board seeking to hire him/her as village attorney.
In a previous opinion of this Committee it was determined that a part-time judge should not accept employment with an entity that would ordinarily appear before the judge, as it would be incompatible with the performance of his/her judicial duties. See Opinion 89-82(Vol. V), citing former section 100.5(h). This preclusion still exists under current section 100.6(B)(4). "Incompatibility includes giving rise to an appearance of impropriety", which is the case herein. Opinion 89-82(Vol. V).
The Committee notes that in Opinion 97-24, it did advise that a part-time town justice could serve as village attorney where it was represented "that the village has only appeared in Town Court on one occasion in the past three years..." Given such an extremely limited prospect of conflict, the Committee concluded that there was no inherent incompatibility between the two positions. Here, no such representation is made and, on the contrary, it appears that a variety of different matters arising in the village will regularly be brought before the Town Court. Under such circumstances, the Committee concludes that the inquirer should not accept the position of village attorney.