Opinion 10-149

October 28, 2010

Digest:         A part-time judge who practices law may apply for certificates of occupancy and building permits on behalf of clients in the village where the judge presides where such application is ministerial in nature and does not involve an exercise of discretion by the building inspector.

Rules:         22 NYCRR 100.2; 100.2(A); 100.2(C); 100.6(B); 100.6(B)(4); Opinion 08-46; 99-23 (Vol. XVII); Joint Opinions 90-59/90-56 (Vol. V); 89-44/89-60 (Vol. V).

Opinion:

         A part-time judge who practices law and represents clients at real estate closings in the village where he/she presides asks whether he/she may apply to the village building department for updated certificates of occupancy on behalf of such clients. The judge advises that a local ordinance requires a buyer to obtain an updated certificate of occupancy in connection with the sale of real estate and indicates that “[t]he application is simply a request for an inspection accompanied by a survey and application fee” [and does not] involve an exercise of discretion by the building inspector.” The judge also asks whether he may “assist clients in applying for building permits * * * need[ed] to obtain a certificate of occupancy * * * in order to sell their homes” provided that the clients are entitled to the permits “as of right,” without the exercise of any discretion. The judge notes that the permits and certificates of occupancy concern “structures that are already built” and because they meet applicable zoning requirements will “not require relief from either the Zoning Board of Appeals or the Planning Board.”

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 (22 NYCRR 100.2[A]). Accordingly, a judge may not lend the prestige of judicial office to advance the private interests of others (22 NYCRR 100.2[C]). While part-time lawyer judges are permitted to practice law (see 22 NYCRR 100.6[B]), they must do so in a manner that does not conflict or interfere with the proper performance of their judicial duties (22 NYCRR100.6[B][4]).

The Committee previously has advised that a part-time lawyer judge may not represent clients before a planning board or zoning board of appeals in the same municipality where the judge presides (see Opinion 08-46; Joint Opinion 89-44/89-60 [Vol. V] ); may not represent a client in a property tax assessment reduction proceeding brought against the town in which the judge’s court is located (see Opinion 99-23 [Vol. XVII]); and may not represent a client in a controversial matter before the planning board of the same town where the judge presides as such representation could “lead to speculation ***of political influence and may appear improper” (see Joint Opinion 90-59/90-56 [Vol. V]). In contrast, in light of the local ordinance the inquiring judge describes, it appears that obtaining an updated certificate of occupancy or building permit to buy or sell an existing property is ministerial in nature.

Therefore, it is the Committee’s view that the inquiring judge may apply to the village building department for updated certificates of occupancy and building permits on behalf of such clients. However, if a particular application is contested, the judge must withdraw from representing the client in the matter.