Opinion 01-125

December 13, 2001

NOTE: Please review Opinion 08-132 before relying on this Opinion.

Digest:         A town justice may not serve as the Corporation Counsel for a neighboring city in the same county if the duties of the office include the prosecution of offenses and other appearances in the City Court, which is presided over by a part-time judge who is permitted to practice law.

Rules:          22 NYCRR 100.6(B)(2); Opinion 87-10 (Vol. I).

Opinion:

         A part-time town justice who is a lawyer has the opportunity to accept appointment as Corporation Counsel for a neighboring city in the same county in which the justice serves. The judge's inquiry concerns the propriety of simultaneously serving in both offices.

         As presented to the Committee, the duties of the Corporation Counsel would include providing legal counsel to the City Council, the management of small claims litigation, the preparation of resolutions for consideration by the City Council, Supreme Court tax certiorari proceedings and assisting in the prosecution of traffic infractions and City Code violations in the City Court. The bench of the City Court includes part-time judges who are permitted to practice law.

         A part-time judge may not practice law in any other court in the county in which his/her court is located before a judge who is permitted to practice law. 22 NYCRR 100.6(B)(2). Although not all the duties of the Corporation Counsel would necessitate appearing in the City Court, a significant amount of responsibility, i.e., the prosecution of City ordinances and Vehicle and Traffic infractions and the management of small claims litigation involving the City, would require that the Corporation Counsel or his/her assistants appear in the City Court.

         Since it would be improper for the town justice, as a practicing attorney to appear in the City Court, it would similarly be improper for the justice, practicing law in his/her capacity as Corporation Counsel, to represent the city in the City Court. The fact that designated assistant corporation counsel is the attorney who is physically present in courtroom is of no significance since the Corporation Counsel is the attorney of record and such appearances are made in the name of the Corporation Counsel. See Opinion 87-10 (Vol.I).