Opinion 14-53

April 24, 2014

Digest:         An attorney who is a part-time town judge may practice law as partner of an attorney who is a part-time village prosecutor, subject to certain limitations.

Rules:          Judiciary Law §§ 212(2)(l); 471; 22 NYCRR 100.2; 100.2(A); 100.6(B)(3); 101.1; Opinions 13-180; 09-235; 07-209; 07-60; 07-14; 06-98; 01-20 (Vol. XIX); 98-51 (Vol. XVI); 97-24 (Vol. XV); 95-63 (Vol. XIII); 92-108 (Vol. X); 89-70 (Vol. III).

Opinion:

         A part-time town judge, who is also employed as a village attorney asks if it is ethically permissible for a partner in his/her private law firm to serve as the village prosecutor in the same village. Although the inquiring town judge’s law partner would appear in the village court in his/her capacity as village prosecutor, the judge “would not appear in [v]illage [c]ourt at any time and would not otherwise be involved as [v]illage [p]rosecutor.”¹

           A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A part-time judge may, subject to certain limitations, engage in the practice of law, but must not permit his/her partners or associates to practice law before any judge in the judge’s court (see 22 NYCRR 100.6[B][3]; Judiciary Law § 471).

         Although the inquiring judge may not serve as a prosecutor (see, e.g., Opinions 09-235; 06-98; 01-20 [Vol. XIX]; 92-108 [Vol. X]), this prohibition does not automatically apply to the judge’s partners and associates. To the contrary, the Committee has advised that a town judge “is not precluded from serving in that office because his/her law partners are also part-time assistant district attorneys” (Opinion 06-98); and that an attorney whose law partner is a part-time assistant district attorney may serve as part-time village judge in the same county (see Opinion 89-70 [Vol. III]).

         However, the judge must not permit his/her partners or associates to practice law before any judge of the court in which he or she is a judge (see 22 NYCRR 100.6[B][3]; see also, e.g., Opinions 07-14 [former “of counsel” arrangement and current office-sharing arrangement with part-time assistant district attorney]; 06-98 [law partners are part-time assistant district attorneys]; 89-70 [Vol. III] [law partner is part-time assistant district attorney]; cf. Opinion 95-63 [Vol. XIII] [advising that it would be “futile” to appoint as acting village justice an attorney whose law partner practices before the village court as a part-time prosecutor, because the partners or associates of a judge may not practice law in the judge’s court]).

         In Opinion 06-98, the Committee further advised the inquiring judge whose partners were part-time assistant district attorneys that he/she must “refrain from engaging in any conversations, or otherwise communicating, with his or her partners about any cases that have been, that are, or that likely will be handled by the District Attorney’s office. Moreover, a judge should not preside if any of his or her partners had any involvement in a case before the judge.”

         Here, the Committee likewise concludes that an attorney who is a part-time town judge may be a law partner of an attorney who also serves as a part-time village prosecutor, subject to the restrictions noted in prior opinions (see 22 NYCRR 100.6[B][3]; Opinions 07-14; 06-98; 95-63 [Vol. XIII]; 89-70 [Vol. III]).

         The Committee notes that it cannot address attorney ethics issues (if any) relating to the propriety of a village prosecutor engaging in the private practice of law with a village attorney (see Judiciary Law § 212[2][l]; 22 NYCRR 101.1).

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     ¹ There is no indication in the inquiry that income earned through the partner’s proposed outside employment as village prosecutor would be shared with the inquiring judge or otherwise treated as revenue to the law firm or partnership.