Opinion 09-235

June 10, 2010

Digest:         (1) A town justice also may serve as town attorney for a different town, and may arraign defendants for that different town where neither town has a municipal police department, but receives law enforcement services from the New York State Police and the District Attorney serves as the prosecutor. (2) As town attorney, the town justice may not represent the town in any courts in the county before judges who are permitted to practice law.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.6(B)(2), (4); Joint Opinion 99-162/99-180/00-63 (Vol. XIX); Opinions 07-209; 07-60; 01-20 (Vol. XIX); 98-51 (Vol. XVI); 98-30 (Vol. XVI); 93-33 (Vol. XI); 90-165 (Vol. VII); 90-109 (Vol. VI).

Opinion:

       A recently elected town justice is also the town attorney for an adjoining town. As a town attorney, he/she represents the town board, the zoning board of appeals and the planning board. In addition, he/she occasionally represents the town in zoning and building code violation cases. As town justice, he/she may be asked to arraign defendants for an adjoining town when that town’s justices are unavailable, including the town where he/she serves as town attorney. The inquiring town justice asks whether he/she can continue to hold both positions.

       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]). Therefore, a judge must disqualify him/herself in any proceeding where his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

       A part-time judge may accept public employment in a municipal department or agency, provided that such employment 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]). In particular, a part-time judge who practices law is prohibited from doing so in the court on which the judge serves and 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]).

       In Joint Opinion 99-162/99-180/00-63 (Vol. XIX), the Committee advised that a town or village justice cannot serve as the municipal attorney for the same municipality in which the judge presides. The Committee also has advised that a town justice cannot serve as the attorney for a village located wholly within the town in which the justice presides where the village has no court and all legal matters arising in the village court will be heard in the town justice’s court (see Opinion 98-51 [Vol. XVI]). However, a town justice may serve as the attorney for a village located wholly within the town where the justice presides, where he/she advises the village board, prepares easements and contracts, and other municipal matters; both municipalities maintain justice courts; and the village employs another attorney who prosecutes village code violations and other litigated matters brought exclusively in the village court (see Opinion 07-209; see also Opinion 07-60). Therefore, it is the Committee’s view that generally, a town justice may also serve as town attorney for a town other than that in which he/she presides.

       However, the judge in the present inquiry advises that his/her position as town attorney includes responsibility for prosecuting town zoning and building code violations. The Committee previously has advised that a part-time town or village justice cannot simultaneously hold a position that requires him/her to prosecute offenses (see Opinions 01-20 [Vol. XIX]; 98-30 [Vol. XVI]; 93-33 [Vol. XI]). Therefore, the inquiring judge cannot be a town justice for one town and town attorney for a different town unless he/she is relieved of his/her prosecutorial responsibilities.

       Assuming the judge is relieved of all prosecutorial responsibilities, the judge asks whether he/she can perform arraignments for the town that he/she serves as town attorney when that town’s judges are unavailable. The Committee previously has advised that a judge who is both a town attorney and a part-time village justice for a village within the same town may not preside over cases brought by police officers employed by the town the judge serves as town attorney as the judge’s impartiality could reasonably be questioned (see 22 NYCRR 100.3[E][1]; Opinion 90-109 [Vol. VI]). But, in Opinion 90-165 (Vol. VII), where a part-time village justice also is a town attorney, the Committee advised that a judge need not disqualify him/herself in a criminal matter where the town police processed the arrest, but the prime witness is the crime victim.

       The Committee understands that neither of the towns the inquiring judge serves has their own municipal police department. Rather, the New York State Police provide law enforcement services for both municipalities. In addition, the District Attorney for the County in which the towns are located prosecutes offenses in both municipalities. Therefore, the inquiring judge may arraign defendants charged with offenses committed in the town he/she serves as town attorney when the justices who preside in that town are unavailable to do so.

       While the inquiring judge may serve as a town justice for one town and the town attorney for a neighboring town, he/she may not represent the town in any local courts in the county before judges who are permitted to practice law (see 22 NYCRR 100.6[B][2]); Opinion 90-109 [Vol. VI]).