Opinion 08-178

November 13, 2008

Hon.

Dear Justice :

         This responds to your inquiry (08-178) in which you ask 1) whether it is ethically permissible for you, as a part-time town justice who is permitted to practice law, to practice law in a Village and/or Town court – in the same county in which your court is located - that has one lawyer/justice and one non-lawyer justice and 2) whether it is ethically permissible for you to appear in another town or village court in the same county in which you preside as opposing counsel to the Assistant District Attorney who regularly appears before you in your capacity as Town Justice.

         In a recent opinion, the Committee found no ethics reason to prohibit a part-time justice from practicing law in another court in the same county in which he/she presides as long as the case is assigned at the outset to the non-lawyer justice and remains with the non-lawyer justice. Enclosed for your convenience is Opinion 08-132 which addresses the issue.

         With respect to your second inquiry, the Committee has found no ethics reason to prohibit a part-time justice who is permitted to practice law from appearing as defense counsel in a criminal case prosecuted by the District Attorney’s Office in the county where the justice presides. In addition, the judge is not automatically disqualified from presiding over matters where the District Attorney’s Office appears. Rather, the judge must determine whether he/she can be fair and impartial, and, if not, must exercise recusal. However, if the occasions when you exercise recusal become so frequent as to interfere with your ability to perform your judicial duties adequately, you may not continue to serve in both capacities (see 22 NYCRR 100.3[A]). Alternatively, if such an inability occurs, the Committee recommends that you seek the assistance of your supervising judge and/or the District Attorney to try to resolve your ethics issue by means of any appropriate administrative measure or measures. Enclosed for your convenience are Opinions 93-73 and 92-40, and Joint Opinion 08-58/66 which relate to the issue.

Very truly yours,

George D. Marlow

Justice of the Supreme Court

Committee Chair

Encls.