Opinion 08-163

October 23, 2008

Digest:         A part-time lawyer/Town Justice may represent a client on a felony charge that originated in another town court, located in the same county, in which both presiding justices are non-lawyers. The case has since been transferred to the County Court, and the client is also involved in two unrelated non-felony cases filed in the lawyer/Town Justice’s court, but assigned to a different Justice.

Rules:          22 NYCRR 100.2; 100.2(A); 100.6(A); 100.6(B)(1), (2); Opinion 01-05.

Opinion:

         A part-time lawyer/Town Justice asks whether he/she may represent a client who is charged with a felony in another town court located in the same county as the one where the inquiring Town Justice presides. After meeting with the prospective client about the felony, but before the prospective client paid the Town Justice a retainer, law enforcement officials filed two new, unrelated non-felony complaints in the inquiring Town Justice’s court. The prospective client is the complainant in one case and the defendant in the other, and neither case was assigned to the inquiring Town Justice’s docket. Approximately two days after the non-felony complaints were filed, the prospective client paid the inquiring Town Justice the retainer for representation in the prior pending felony matter. By that time, the felony had been sent from the originating town court to the County Court for prosecution.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A part-time lawyer Town Justice is permitted to practice law (see 22 NYCRR 100.6[B][1]), but shall not practice law in the court on which the judge serves or in any other court in the county in which his/her court is located, before a judge who is permitted to practice law (see 22 NYCRR 100.6[B][2]).

         The Town Justice in the present inquiry seeks to represent a client on a felony charge that originated in a court other than that in which he/she serves. That court is presided over by two non-lawyer town justices before whom he/she is permitted to practice (see 22 NYCRR 100.6[B][2]). In addition, the inquiring Town Justice is permitted to practice law in the County Court where the felony charge is now pending (see 22 NYCRR 100.6[A]). Furthermore, even if the felony charge were later reduced and the matter returned to the originating town court, the inquiring Town Justice is permitted to appear in that court (see 22 NYCRR 100.6[B][2]). Finally, the non-felony charges involving the inquiring Town Justice’s prospective client that are pending in the Town Justice’s own court are unrelated to the felony charge and are not on the Town Justice’s docket (see Opinion 01-05). Therefore, under these circumstances, it is the Committee’s view that the inquiring Town Justice may represent the client on the felony charge.