Opinion 08-46

March 13, 2008

Digest:         A part-time judge may not represent private clients before a zoning board of appeals or a planning board of the same municipality where the judge presides.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(G); 100.6(B)(1); 100.6(B)(4); Opinion 98-94 (Vol. XVII); Joint Opinions 90-59 and 90-65 (Vol. V); 89-44 and 89-60 (Vol. V).

Opinion:

         A part-time lawyer judge asks the Committee to re-consider its prior opinions that prohibit a part-time lawyer judge from representing private clients before the zoning board of appeals or planning board for the same municipality where the judge presides. The judge points out that a challenge to a zoning board of appeals decision cannot be heard in a court where a part-time lawyer judge presides, as only Supreme Court has jurisdiction over the procedural mechanism for appealing such decisions, i.e. CPLR, Article 78. The judge also opines that the same rule that applies to judges who sit in municipalities with small populations should not apply to judges who sit in municipalities with large populations.

          Unlike full-time judges, part-time judges and justices who are lawyers are permitted to practice law (see 22 NYCRR 100.4[G]; 100.6[B][1]) and may accept private employment which is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties (see 22 NYCRR 100.6[B][4]). All judges must avoid impropriety and the appearance of impropriety in all of their activities (see 22 NYCRR 100.2), 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]), and may not lend the prestige of judicial office to advance the private interests of others (see 22 NYCRR 100.2 [C]).

         In Joint Opinion 89-44/89-60 (Vol. V), the Committee concluded that because a part-time lawyer town justice who presides in zoning violation cases may appear to be an integral part of the town’s zoning enforcement scheme, to also represent clients before the town’s zoning board of appeals or planning board would create an appearance of impropriety. In Joint Opinion 90-59/90-65 (Vol. V), the Committee advised that, “[a] part-time judge’s representation of a client in a controversial matter before the planning board of the same town where [he/she] serves as judge may lead to speculation, although unfounded, of political influence and may appear improper.” For the same reasons, in Opinion 98-94 (Vol. XVII), the Committee advised that a part-time city court judge should not represent clients in zoning matters before the city council.

         The Committee finds the reasoning of its prior opinions sound and, therefore, declines to either modify or overrule its conclusion that it is ethically impermissible for a part-time lawyer judge or justice to represent clients before a planning board or zoning board of appeals in the same municipality where the judge presides.