Opinion 19-31

May 2, 2019

Please Note: In issuing this opinion we assumed, based on the facts presented, that the town was a named party in town code enforcement cases. We note that, in at least some instances, building code violations and other alleged violations of local ordinances may be prosecuted in the name of the People of the State of New York, apparently pursuant to authority delegated by the District Attorney (see e.g. Opinion 21-101 fn 1). 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:         Where the town attorney has become “of counsel” to a town justice’s law firm, so that the town is now the law firm’s client, the judge is disqualified from presiding in all cases where the town is a party, including in town code enforcement cases. If there is any likelihood that town code cases will come before the court, the judge must resign from one of the two positions.

Rules:          Judiciary Law § 471; 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(E)(1); 100.6(B)(3); Opinions 17-172; 12-134; 09-128; 09-115; 09-19; 99-162/99-180/00-63; 98-117; 93-111; 91-103.

Opinion:

         A part-time town justice’s law firm has become affiliated with the town attorneys, who are now “of counsel” to the firm. The judge asks if he/she may continue to handle town code enforcement cases, if the town hires a special prosecutor to handle such matters. Alternatively, the judge asks if he/she may ask the administrative judge to assign town code cases to another town justice so that the town attorneys can prosecute the matters in the town court.

         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]). Part-time judges may practice law, but they may not permit their partners and associates to practice in the court where they preside (see 22 NYCRR 100.6[B][3] [obligation of each judge in the court]; Judiciary Law § 471 [obligation of the attorneys]).

         The initial ethical hurdle is that attorneys who are affiliated with a town justice’s law practice cannot appear before any judge of the town court (see 22 NYCRR 100.6[B][3]; Judiciary Law § 471). The inquiring judge may not ask the administrative judge to assign all code violation cases to another town judge, as the request would improperly prioritize the judge’s legal practice over his/her official judicial duties (see 22 NYCRR 100.3[A]; Opinion 09-128). Nonetheless, if the town is willing to hire a special prosecutor to handle all town code cases, we believe this would resolve the Section 100.6(B)(3) issue, provided the special prosecutor reports exclusively to the town supervisor or town board and not to the town attorneys who are affiliated with the judge’s law firm (cf. Opinion 17-172).

         However, a second ethical issue remains because a part-time attorney judge must disqualify him/herself from matters involving current and recent former clients of his/her law firm (see e.g. Opinion 09-19). 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 (see Opinion 09-128). Thus, the judge must disqualify him/herself from all town code cases, regardless of who is prosecuting them (see id.).

         Twenty years ago, we advised that neither a part-time local judge nor the judge’s law firm should serve as the attorney for the same municipality where the judge sits “if there is any likelihood that matters involving the municipality, including enforcement of local laws, will come before the court” (Opinion 99-162/99-180/00-63). While we attempted to soften this rule in Opinion 09-128, on further consideration, we believe the earlier bright-line rule is easier to remember and follow. Hence, assuming the law firm wishes to continue representing the town, we conclude that the inquiring judge must either resign from the firm or from his/her judicial office.

         Opinion 09-128 is partially modified to be consistent with this opinion. That is, a village justice whose law firm associate is the village attorney and whose firm is special counsel to the village, must either resign from the firm or resign his/her judgeship if there is any likelihood that village code matters will come before the court.¹

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¹The present opinion does not address issues relating to representing the town or village as outside counsel in a specific litigation in another court (see Opinions 09-115; 12-134; 98-117) or in a contract matter (compare Opinion 93-111 with Opinion 91-103).