Joint Opinion 89-44 ; 89-60

January 18, 1990

Digest:         A part-time judge may not represent a private client before the town’s zoning board of appeals, but the judge’s law partners or associates may represent such clients.

Rules:          22 NYCRR 100.2(b); 100.3 ; 100.5(h).

Opinion:

         Part-time judges, who are also attorneys in private practice, ask whether they may represent private clients before the zoning board of appeals in the town where they preside as judges.

         Section 100.5(h) of the Rules of the Chief Administrator states that a part-time judge is permitted to practice law and may accept private employment “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 100.2(a) of the Rules of the Chief Administrator provides that a judge shall “conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the Judiciary.”

         A judge who presides over zoning violation matters may appear to be an integral part of the town’s zoning enforcement scheme. In order to avoid the appearance of impropriety, a part-time judge should not represent clients before the zoning or planning board which covers property within the jurisdiction served by the judge’s court. The executive committee of the New York State Magistrates’ Association has concurred, finding that judges who are practicing attorneys should not represent private clients before their municipality’s planning or zoning boards, as this creates an appearance of impropriety.

         In addition, section 100.3 of the Rules of the Chief Administrator of the Courts provides that the “judicial duties of a judge take precedence over all his other activities.” The judge’s duty to preside over all matters which appear before him or her, including zoning violations, must take precedence over the judge’s private practice. Consequently, a judge may not disqualify himself or herself from zoning violation matters in order to represent a client with a zoning variance matter. The judge, however, may permit his or her law partners or associates to represent clients and to appear before the town zoning or planning board.

         This Committee has reconsidered Opinion 88-90, in which we found that a part-time judge could represent a private client before a zoning board, and will no longer adhere to that determination.