Opinion 22-169

December 15, 2022

Digest:       A village justice who is a lawyer may represent the village mayor in providing legal advice and negotiations in the dissolution of the mayor’s marriage.

Rules:        22 NYCRR 100.0(S); 100.1; 100.2; 100.2(A); 100.2(C); Opinions 21-110; 19-114; 12-134; 93-111.

Opinion:

         A part-time lawyer judge, who presides in a village court, asks about his/her ethical obligations relating to a request by the village mayor for the judge to represent the mayor in the dissolution of the mayor’s marriage. The judge indicates that the representation will be limited to advice and negotiation on the mayor’s behalf, as the judge “do[es] not accept litigated matrimonial matters.”

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must uphold the judiciary’s independence (see 22 NYCRR 100.1; 100.0[S] [“An ‘independent’ judiciary is one free of outside influences or control.”]). Thus, for example, a judge must not lend the prestige of judicial office to advance the private interests of others nor permit anyone to “convey the impression that they are in a special position to influence the judge” (22 NYCRR 100.2[C]).

         Although a part-time town or village justice is limited in their ability to serve as ongoing municipal counsel for their own municipality, they may represent the municipality in a discrete matter that will not be heard in the judge’s court (see Opinions 21-110 [collective bargaining]; 12-134 [state or federal action]; 93-111 [contract matter]). Similarly, we have said that a part-time town justice may represent the town and a village contained within the town in federal court (see Opinion 19-114). However, the judge is then disqualified in matters where either client is a party (see id.). Although the disqualification is subject to remittal, if the representation results in excessive disqualifications, the judge must choose between the two positions (see id.; cf. Opinion 21-110).

         In our view, representation of the chief executive of the judge’s village is permitted by analogy to representation of the village. Thus, we conclude that the inquiring part-time village justice may represent the village mayor in the dissolution of the mayor’s marriage, including providing advice and assistance in negotiating with opposing counsel.