Opinion 88-128

December 8, 1988

Topic:          Town justice serving as county attorney.

Digest:         A town justice may serve as county attorney provided that he does not need to recuse himself frequently when he hears cases as a town justice.

Rules:          22 NYCRR §1OO.5(f); 100.5 (h)

Opinion:

         A part-time town justice inquires about serving in a part-time position as county attorney. He states that no members of the county attorney's office would have occasion to appear in his court.

         Section 100.5(h) of the Rules of the Chief Administrator provides that:

A part-time judge may accept private employment or public employment in a Federal, State or municipal department or agency, provided that such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge's duties.

         Pursuant to this section, the justice may serve as county attorney. However, he must disqualify himself in any case which involves even the appearance of impropriety between his two positions. If his position as county attorney requires numerous occasions for recusal as town justice because of appearance either by himself or by an associate in the county attorney’s office, then he should not take the position. Furthermore, as county attorney, he may not appear in his own court or in any other court in his county which is presided over by a judge who is permitted to practice law, 22 NYCRR 100.5(f).