Opinion 19-114

October 24, 2019

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).

Please Note: With respect to the block quote from Opinion 19-31, we subsequently clarified that, where a municipal code enforcement matter is prosecuted solely in the name of the State of New York, and the municipality is not a named party, the mere fact of the municipality’s presumed interest in enforcement of its local codes does not make the municipality a “party” to the proceeding for purposes of disqualification (see Opinions 21-110; 21-101; 19-92).  

Digest:         A part-time town justice may represent the town and a village contained within the town in federal court. However, he/she is then disqualified in matters where either client is a party. While the disqualification is subject to remittal, if the representation results in excessive disqualifications, the judge must choose between the two positions.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(E)(1); 100.6(B)(1)-(4); Opinions 19-31; 16-130; 12-134; 09-115; 07-123; 99-162/99-180/00-63; 98-117.

Opinion:

         The inquiring part-time attorney judge serves in a town court that includes the village. An existing client “is interested in challenging” a recent regulatory decision in federal court. As the town and village may also wish to assert a similar interest in the matter, the judge asks if he/she may also represent them in “the judicial review of a federal administrative action.”

         A judge must always avoid even the appearance of impropriety and must always act in a manner that promotes the public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]). A judge must disqualify him/herself in any proceeding in which his/her impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). A judge’s judicial duties take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]). Nonetheless, a part-time judge may accept private employment provided it 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]). Likewise, a part-time attorney judge may practice law, subject to limitations (see e.g. 22 NYCRR 100.6[B][1]-[3]).

         Although a part-time town or village justice must not serve as the town or village attorney for his/her municipality (see e.g. Opinions 07-123; 99-162/99-180/00-63), he/she may serve as outside counsel in a litigation that will not be heard in his/her court (see Opinions 12-134 [town justice’s law firm may represent the town in a state or federal action]; 98-117 [village justice may represent the village in a federal civil rights action]; 09-115 [village justice’s law firm may represent the village as a defendant in state or federal court]).

         As this town justice would represent the town and village in federal court on an issue that cannot be heard in the town court, we see such employment as not incompatible with the judge’s judicial duties. We thus conclude the judge may ethically represent the town and village in federal court in this particular matter.

         This does not entirely end the analysis, however. As we observed in Opinion 19-31 (citations omitted):

a part-time attorney judge must disqualify him/herself from matters involving current and recent former clients of his/her law firm. Because the town is a current client of the judge’s law firm, the judge may not preside in any matter in which the town itself is a party. Thus, the judge must disqualify him/herself from all town code cases, regardless of who is prosecuting them.

Here, if the judge takes on the town and village as clients, he/she must similarly disqualify him/herself from all cases where the town or village is a party. The disqualification is subject to remittal following full disclosure on the record, provided no party is appearing without counsel. If disqualification is too frequent, the judge must choose between representing these clients and continuing as a judge.

Note on Remittal

         As described in Opinion 16-130 (citations omitted), where permitted, remittal is a three-step process:

As always, remittal is not permitted if any party appears pro se or if the judge doubts his/her ability to be impartial. However, assuming all parties are represented by counsel and the judge wishes to offer an opportunity for remittal, the usual three-step process applies. First, the judge must fully disclose the basis for disqualification on the record. Second, without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree that the judge should not be disqualified. Third, the judge must independently conclude that he/she can be impartial and be willing to participate in the case. If all three steps are satisfied, the judge may accept remittal of disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding.