Opinion 89-69

September 12, 1989

Digest:         Part-time attorney-village justice may represent clients in criminal matters in town courts within the same county where the town justices are not attorneys, if one of the town justices is appointed as an acting village justice of the same village, provided that the attorney's cases always are presided over by the town justice who is not also village justice.

Rules:          22 NYCRR 100.2(a); 100.5(f)

         A part-time village justice, who is also an attorney in private practice, represents criminal clients in cases pending before the town court of the town in which the village is located. Both town justices of the town are non-lawyers. Such practice is permitted by the Rules of the Chief Administrator of the Courts (22 NYCRR 1OO.5[f]), which states in part:

A judge who is permitted to practice law shall, nevertheless, not practice law in the court in which he or she is a judge ... 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 ...

         In a previous opinion (87-18) this Committee indicated that what is not prohibited should be deemed permitted, i.e., a part-time judge can practice law in other courts in the county in which his or her court is located when such courts are presided over by judges who are not permitted to practice law (non-lawyer part-time judges or full-time judges).

         One of the town justices is to be appointed as an acting village justice, apparently to act when the present village justice is unavailable. The present attorney-village justice has inquired whether it is permissible to continue to represent clients in the town court if the attorney-justice's cases are transferred to the other town justice, not going before the town justice who also will become acting village justice.

         Since the town court and village court are separate and distinct courts, there is no violation of the Chief Administrator's Rules if the attorney-village justice continues to appear in the town court, provided that the attorney-village justice's

cases in town court always are presided over by the town justice who is not also the village justice, and never by the town justice who also will have become acting village justice.