Opinion 21-01

January 28, 2021

Digest:         A town justice, who serves as village attorney for a village which is wholly encompassed within the town where the justice presides, may not continue as town justice and village attorney where the town court would be expected to hear all cases arising out of the village, including actions to enforce village zoning, parking and other local laws. The justice may not recuse from all village cases in order to retain both positions.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(G); 100.6(B)(1)-(4); Opinions 19-160; 18-184; 07-209; 07-60; 98-51; 97-24.

Opinion:

         A town justice who serves as village attorney for an incorporated village, which is wholly encompassed within the town where the justice presides, has learned that the village seeks to abolish its independent court. As a result, the town court would hear all cases where the village is a party, including but not limited to, actions to enforce village zoning, parking and other village local laws. The inquiring judge asks whether it is permissible to continue as town justice and also as village attorney, if the judge recuses from all matters where the village is a party.

         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]). A part-time judge may accept public employment in a municipal department or agency, provided such employment 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]). A part-time judge, unlike a full-time judge, may practice law, albeit subject to certain limitations (see 22 NYCRR 100.4[G]; 100.6[B][1]-[3]). For example, a part-time judge must not practice law in the court on which the judge serves (see 22 NYCRR 100.6[B][2]).

         A town justice cannot serve as village attorney for a village within the same town where the village attorney would be required to appear regularly before the town court (see Opinion 98-51). Here, it appears that elimination of the village court would result in the town court assuming responsibility for all actions emanating out of the village which are handled by the village attorney, including actions to enforce village zoning, parking and other village local laws.

         We note that the exceptions recognized in certain prior opinions do not appear to apply here. For example, we said a part-time town justice could also serve as village attorney where it was represented “that the village attorney appeared in town court on one occasion in the past three years” (see Opinion 97-24). Given the extremely limited prospect of conflict, and with the proviso that the inquiring judge would need to advise the village of the need to arrange for special counsel or the district attorney to prosecute cases before the other town judge in matters involving the village, we concluded that there was no inherent incompatibility between the two positions. We also advised that a town justice may serve as village attorney for a village within the town where the judge’s agreement with the village was that they would not be involved in any court appearances (see Opinion 07-60; cf. Opinion 07-209 [“both municipalities maintain justice courts and ... the village employs a separate village prosecutor” to handle all litigated matters]).

         The town justice also inquired about continuing as town justice if they would recuse on all village cases. Because a judge’s judicial duties take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]), we have said a part-time justice who is also a law clerk to a full-time judge in a criminal part may not avoid insulation as a law clerk in matters originating in the justice court by having the other justices handle all felony-related criminal proceedings in the justice court (see Opinion 18-184). Thus, recusal as a judge is not a solution to the conflict because it would “improperly give precedence to his/her extra-judicial duties” (id.). We also advised that if a judge’s outside employment results in excessive disqualifications, they must choose between the positions (see Opinion 19-160). Here, too, the volume of village cases would result in excessive disqualifications and therefore recusal is not available on these facts. The judge may not recuse from all village cases in order to retain both positions.