Opinion 94-32

April 28, 1994

Digest:         The law firm of which a part-time village justice is a member may represent a private client before the Village Board, the Village Planning board and in litigation against the Village in the Supreme Court, but the justice may not participate in such representation or share in the fees earned.

Rules:          22 NYCRR 100.2; 100.5(f)

Opinion:

         The inquirer is an acting village justice who presides only in the event the village justice is absent or there has been a recusal in a particular case. The inquirer also is a member of a law firm which has been approached by a commercial landowner in the village who is seeking an amendment to the village code and, in the event the amendment is obtained, will be applying for a particular use. If the amendment is not obtained, litigation in the Supreme Court challenging the present Village Code provision may be instituted. The proposed retainer agreement between the potential client and the law firm would specifically provide that the judge would not perform any work in the matter and would not be involved in any way in representing the client.

         The judge asks whether the judge's law firm may represent the client before the village board and planning board and, if necessary, engage in litigation against the village in the Supreme Court, provided the judge takes no part in such representation.

         It is the opinion of the Committee that there is no bar to the law firm representing the particular client referred to before the village board, the planning board and in the Supreme Court. However, the judge may not take part in any way in the matter. Such impermissible participation would include, among other things, the rendering of advice and participation in consultations. Nor may the judge share in the fee paid by the client. Participation in such representation and the sharing of fees would, in the opinion of the Committee, create an appearance of impropriety under Section 100.2 of the Rules of the Chief Administrator of the Courts.

         The judge also promises to "disqualify myself should any matter involving the private client appear before the Village Court." See also Section 100.5(f) of the Rules pertaining to the practice of law by part-time judges and their partners and associates.