Opinion 13-112

October 15, 2013

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Dear Justice:

         This responds to your inquiry (13-112) asking several questions regarding your ethical obligations with respect to your co-judge in the town court, who practices law in the village court where you also preside as village justice.

         Your co-judge is prohibited from practicing law in the court where he/she presides and in any court located in the county where he/she presides before another judge who is permitted to practice law (see 22 NYCRR 100.6[B][2]). Consequently, your co-judge can practice law in any local court in the same county where he/she presides, but only before a non-lawyer judge. In addition, in any case in which your co-judge from the town court appears as an attorney, you must disqualify yourself, subject to remittal, unless a party appears without representation (see Opinion 08-204; 22 NYCRR 100.3[F]). In the latter case, you must disqualify yourself, but remittal is not available (see Joint Opinion 07-114/0-120). If all parties are represented by counsel, but decline to remit your disqualification, or you decide to simply disqualify yourself without affording the parties the opportunity to remit your disqualification, the acting village justice may preside in cases where your co-judge appears, because the acting village justice is not a lawyer. These rules apply in all cases, including summary proceedings.

         As for the proper place for conducting an arraignment, the Uniform Justice Court Act provides in relevant part as follows (UJCA 106[1]):

A justice may hold court anywhere in the municipality including in the case of a town justice anywhere within a village wholly or partly contained within the town of which he is a justice regardless of whether or not said village has a village court and in the event two or more contiguous villages maintain offices in the same building, a village justice of any such village may hold court in such building, notwithstanding that the building is outside the boundaries of such village (Emphasis added).

Accordingly, it is permissible for your co-judge to conduct arraignments in the village court.

         Finally, your co-judge may bring a summary proceeding on his/her own behalf in the village court. The Rules Governing Judicial Conduct do not preclude a judge from exercising the same rights as any litigant, whether appearing pro se or by counsel (see Opinions 09-12 and 96-40 [Vol. XIV]). Under these circumstances, you must disqualify yourself, subject to remittal, unless a party appears pro se (see Opinion 08-204; 22 NYCRR 100.3[F]).

         Enclosed, for your convenience, are Opinions 09-12; 08-204 and 96-40 which address these issues.

                                       Very truly yours,

                                       George D. Marlow, Assoc. Justice

Appellate Division, First Dept. (Ret.)

Committee Chair

Encls.