Opinion 88-90

OVERRULED BY JOINT OPINION 89-44; 89-60

September 19, 1988

Topic:          Propriety of part-time village justice representing client before village zoning board of appeals or commencing Article 78 proceeding against the village.

Digest:         A part-time village justice ordinarily may represent a client before a village zoning board of appeals in the absence of any conflict of interest or appearance of impropriety, but may not represent such client in litigation against the village..

Rules:          22 NYCRR §100.2(a); 100.2(c), 100.5(f); Canons 2A, 2B of the Code of Judicial Conduct.

Opinion:

         A part-time village justice inquires whether he may represent a private client before the zoning board of appeals in the same village, and in litigation against the village.

         In general, part-time judges may engage in private practice before tribunals of which they are not a member, provided the circumstances would not give rise to any possible appearance of impropriety, prejudice or favoritism. The ethical propriety of a part-time associate village justice representing a private client before a zoning board of the village in which he serves as justice depends upon the circumstances of each particular case. Their representation would be proper only if it were clear that there were no conflict between his duties to the public as a judge and his duty of undivided loyalty to this client; and provided there were a total absence of even the appearance of professional impropriety. CJC Canon 2A, 2B; 22 NYCRR, §100.2(a), 100.2(c), 100.5(f).

         For example, the part-time associate village justice should not represent a private client in a zoning matter, if there were any possibility that his client might be charged with a violation of a village zoning ordinance, or if the matter were highly controversial. See also, New York State Bar Association Committee on Professional Ethics, Opinion #252 (1972).

         The associate village justice’s second question is whether he may commence an Article 78 proceeding against the village or its zoning board in order to challenge an adverse determination to this client’s application for a variance by the zoning board of appeals.

         It would be improper for the associate village justice to represent a claimant against the village in litigation even though the proceeding is in the Supreme Court. His position as an associate village justice is inconsistent and in conflict with prosecuting his client’s actions against the village. Canon 2A of the Code of Judicial Conduct provides that a judge should avoid the appearance of impropriety in all his activities, and should conduct himself at all times in a manner that promotes public confidence in the integrity of the judiciary. See also, New York State Bar Association Committee on Professional Ethics, Opinion #308 (1973).

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