Opinion 16-72

May 5, 2016

Digest:         A part-time justice, as counsel to an association of local government officials and employees, may advise individual members concerning local justice court operational issues, where such issues do not pertain to any pending cases, nor the court in which the judge presides.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(B)(6); 100.3(B)(8); 100.6(B)(2)-(4); Opinion 14-157.

Opinion:

         The inquiring part-time town or village justice serves as counsel to a voluntary membership association for certain local government officials and employees. In that position, the judge advises individual association members “on a myriad of municipal issues” but does not have an attorney/client relationship with any of the members (cf. Opinion 14-157). He/she sometimes is asked about justice court operations such as “creating and/or abolishing” a local justice court, “hiring/firing court personnel, court clerk issues, vacancies in judicial office and the interplay between” a local justice court and its municipality. The judge has also received an inquiry concerning the Hurrell-Harring settlement (Sup Ct, index no 8866-07) and its potential impact on a municipality’s budget. The inquiries are not aimed at pending cases, nor to the judge’s court.¹ He/she asks if he/she may address such issues.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). For example, a judge must not engage in impermissible ex parte communications (see 22 NYCRR 100.3[B][6]) or publicly comment on pending or impending cases in the United States or its territories (see 22 NYCRR 100.3[B][8]). Nonetheless, a part-time judge may generally accept public or private employment not incompatible with judicial office nor conflict or interfere with judicial duties (see 22 NYCRR 100.6[B][4]), and may practice law with certain limits (see 22 NYCRR 100.6[B][2]-[3]).

         The justice court operational issues the judge describes are administrative in nature, and do not involve the judge’s own court or any identifiable pending cases in any court. Answering such questions is thus unlikely to run afoul of restrictions on judicial speech and conduct, conflict or interfere with judicial duties, nor create an improper appearance. Thus, the judge may discuss such issues with association members as the association’s counsel.

________________________________

         ¹ Officials and employees of the municipality in which the judge presides are not eligible to join the association.