Opinion 92-108

September 24, 1992

Digest:         A village prosecutor must relinquish that position before accepting an appointment as a part-time judge.

Rules:          22 NYCRR §§100.2; 100.5(f).

Opinion:

         An attorney, who is a village prosecutor, represents that village in traffic infraction matters and building code violations in the village court, which is presided over by a part-time lawyer-judge. The village prosecutor has been approached by another village within the same county and offered an appointment as a village justice in the other village. The prosecution has inquired about the propriety of accepting the judicial appointment.

         This Committee has previously decided that a part-time judge may not also serve as a district attorney, as the two positions are incompatible, and may create an appearance of impropriety. (See, Opinion 90-188; 22 NYCRR 100.2.) Moreover, if the attorney serves as village justice in the same county where the attorney also acts as village prosecutor, the prosecutor would not be able to appear in that village court as it is presided over by another attorney-judge. (22 NYCRR 100.50[(f]0).) Therefore, to accept the appointment as village justice, the inquirer would first have to resign from the present position as village prosecutor.