Opinion 21-110

June 17, 2021

Digest:         Where proceedings involving the town, its highway department, or the highway department’s employees are very rare in the town court, a town justice may represent the town in collective bargaining negotiations with the union representing the town’s highway department personnel. However, the judge must disqualify in all matters where the town is a party both for the duration of the representation and for two years after it completely ends.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(G); 100.6(B)(1)-(4); Opinions 21-101; 19-31; 12-182; 12-134; 09-115; 98-153; 98-117; 93-111; 91-103.

Opinion:

         A town justice who is permitted to practice law asks if they can represent the town in its collective bargaining with the union that represents the town’s highway department personnel. The judge advises that the town highway department and its personnel do not regularly appear in the town court, the town has never appeared in the judge’s court as a party, and even town code enforcement cases are very rare.

         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]). Unlike full-time judges, part-time judges and justices who are lawyers are permitted to practice law (see 22 NYCRR 100.4[G]; 100.6[B][1]-[3]) and may accept private employment which is not incompatible with judicial office and which does not conflict or interfere with the proper performance of the judge’s duties (see 22 NYCRR 100.6[B][4]). However, such outside employment or legal practice is subject to limitation, because a judge’s judicial duties “take precedence over all the judge’s other activities” (see 22 NYCRR 100.3[A]).

         We have advised that a town justice may not represent a municipal employees’ union in negotiations against the town, nor may a town justice serve as a workplace ombudsman for aggrieved town employees (see Opinions 98-153; 12-182).

         When it comes to representing the town, our opinions are more nuanced. On the one hand, we have said that a town justice may not represent the town in negotiating a contract with the police union (see Opinion 91-103). In reaching this outcome, we relied heavily on the fact that members of the police union would regularly appear before the judge (see id.). We have also said that neither a part-time local judge nor the judge’s law firm should serve as the municipal 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 19-31). Indeed, we adopted a “bright-line” rule, such that if the law firm wished to continue serving as the town attorney, the town justice “must either resign from the firm or from his/her judicial office” (id.).

         However, in a footnote to Opinion 19-31, we clarified that the opinion applied to a judge or their partners/associates serving as ongoing municipal counsel, and not to a one-time representation in a specific litigation or contract matter:

The 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).

         Thus, our prior opinions permitting a part-time judge to represent their local municipality on discrete individual matters remain in effect. We said, for instance, that a town justice may represent the town in state or federal litigation unless the representation will result in excessive disqualifications (see Opinions 09-115; 98-117; 12-134). While a city court judge is a state official, rather than a municipal one, we likewise said that a part-time city court judge may represent the city in a contract negotiation (see Opinion 93-111).

         Therefore, given the inquiring judge’s representation that proceedings involving the town generally, and the highway department and its employees in particular, are very rare in the town court and the representation is not ongoing but rather is for a collective bargaining negotiation with a specific union whose members do not regularly appear before the judge, we conclude that the judge may represent the town in this specific negotiation.

         As the town will be the judge’s client, the judge must disqualify (subject to remittal) in all matters in which the town is a party both for the duration of the representation and for two years thereafter (see Opinion 19-31).¹

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¹ While the judge represents that town code enforcement proceedings are very rare, we note that if the town is a named party in such proceedings during this period, the judge must disqualify. We also note that in Opinion 21-101, where local building code violations and other alleged violations of local ordinances were prosecuted in the name of the People of the State of New York, pursuant to authority delegated by the District Attorney, we said the judge must disqualify if the municipality is a named party, but “need not disqualify if the [municipality] is merely an interested party” (Opinion 21-101).