Opinion 94-62

June 16, 1994

Digest:         A town justice should not recuse himself or herself from proceedings where the town attorney who prosecutes zoning and recycling cases appears as defense counsel in vehicle and traffic and criminal cases, if the judge believes that he or she can be impartial.

Rules:          22 NYCRR 100.3(c); Opinion 92-75, Vol. IX

Opinion:

         A part-time justice believes that New York State Bar Association Opinion 657 (48-93), requires a clarification of this Committee’s Opinion 92-75, Vol. IX, dated June 18, 1992. In the judge’s jurisdiction the town attorney prosecutes zoning and recycling violations and as private defense counsel appears in vehicle and traffic and criminal cases prosecuted by the district attorney.

         In Opinion 92-75, we held that a village justice should not recuse himself or herself from matters where the village attorney appears for private clients if the judge believes that he or she can be impartial.

         In Opinion 657 (48-93) the Committee on Professional Ethics of the NYSBA held that part-time attorneys for municipalities, regardless of title or actual responsibilities, may not undertake criminal defense work before courts of the same locality although there is no per se prohibition on the representation of private clients in civil matters.

         The inquiring justice correctly recognizes that the NYSBA Opinion is not binding upon him but believes it raises a question of ethical impropriety.

         NYSBA Opinion 657 (48-93) relates to the conduct of attorneys and not to the question of recusal. The Committee adheres to Opinion 92-75. As stated in that Opinion, “A judge should not recuse himself or herself from proceedings unless his or her impartiality could be questioned or would otherwise create the appearance of impropriety.” (22 NYCRR 100.3(c)). There should not be recusal if the judge believes that he or she can be impartial.

         However, the Committee believes it would be appropriate for the inquiring justice to call the NYSBA Opinion to the attention of the Town Attorney.