Opinion 88-82

Sept. 13, 1988

Topic:          Prosecution by village attorney, who also serves as part-time city court judge, of vehicle and traffic and ordinance violations in town court.

Digest:         City Court judge who is also a village attorney may prosecute vehicle and traffic and ordinance violations in the town court, since the town court in question is presided over by non-lawyer judges.

Rules:          22 NYCRR 100.5

Opinion:

         A city court judge, who is also the village attorney, inquires whether he may prosecute vehicle and traffic and ordinance violations in the town court, which is presided over by non-attorney judges.

         Section 100.5(h) of the Rules of the Chief Administrator [22 NYCRR] states that “a part-time judge may accept 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.”

         Section 100.5(f) states:

A judge who is permitted to practice law shall, nevertheless, not practice law in the court in which he or she is a judge, whether elected or appointed, nor shall a judge practice law in any other court in the county in which his or her court is located which is presided over by a judge who is permitted to practice law.

         Thus, under the rules, a part-time judge may hold a position as a village attorney, and may appear in the Town Court presided over by judges who are not permitted to practice law. No provision of the rules restricts the judge from handling criminal matters, either as a prosecutor or defense counsel. The part-time judge may therefore prosecute the cases in question.

         This Opinion is advisory only and does not bind either the Office of Court Administration or the Commission on Judicial Conduct.