April 29, 2021
Digest: Where a town justice serves as village attorney for a village which is wholly encompassed within the town where the justice presides, and the village retains a completely independent special prosecutor to handle all village court matters, the vast majority of which involve parking violations, the town justice may continue to serve as village attorney after the village court is abolished. However, the town justice may not preside in cases where the village is a party; if this results in frequent disqualifications, the justice must choose between the positions of town justice and village attorney.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(G); 100.6(B)(1)-(4); Opinions 21-01; 19-114; 07-60; 97-24.
The inquiring town justice also serves as the village attorney for a village contained within the town. The town justice has never appeared personally in the village court, as the village retains a special prosecutor to handle all village court matters. This special prosecutor has “no affiliation whatsoever” with the inquiring town justice’s law firm, and no one from the town justice’s law firm has appeared in the village court for at least two years. Further, we understand that the village very rarely appears as a party in the village court, except in parking violation matters. The village is considering abolishing the village court, so that village cases will now be heard in the town court. The inquiring justice notes that, unlike the scenario considered in Opinion 21-01, even after the town court assumes the village court’s caseload, any cases in which the village is a party will continue to be handled by the special prosecutor, an independent attorney who is not subject to supervision by the village attorney and is entirely unaffiliated with the town justice and the firm. The town justice asks if it is permissible to continue to serve as town justice and village attorney under these circumstances.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A part-time judge may accept public employment in a municipal department or agency, provided such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s judicial duties (see 22 NYCRR 100.6[B]). A part-time judge, unlike a full-time judge, may practice law, albeit subject to certain limitations (see 22 NYCRR 100.4[G]; 100.6[B]-). For example, a part-time judge must not practice law in the court on which the judge serves (see 22 NYCRR 100.6[B]).
Here, we do not see an inherent incompatibility in the positions of town justice and village attorney so as to preclude the holding of both offices. In Opinion 97-24, we advised that a part-time town justice could serve as village attorney where it was represented “that the village has only appeared in Town Court on one occasion in the past three years” and “the District Attorney or special counsel on behalf of the village would appear in front of the other town justice” on any village law or zoning violation matter. Given such an extremely limited prospect of conflict, we concluded that there was no inherent incompatibility between the two positions, as long as the town justice advised the village of the need to arrange for the special counsel or district attorney to prosecute cases before the other town judge in matters involving the village (see id.). Likewise, we said it was permissible for a town justice to serve as village attorney for a village within the same town where, “pursuant to [an] agreement with the village board,” the “village attorney position would not involve any court appearances” and “there has only been one instance where the village was involved in litigation before the town court” (Opinion 07-60).
Here, a similar representation has been made as to non-involvement of the village attorney in matters that come before the village court, and it further appears that the village very rarely appears in the village court except on parking violation matters. Assuming that all village parking violation matters can be assigned at the outset to the other town justice, and that the village will very rarely otherwise appear as a party in the town court, we conclude that the inquirer may serve both as the village attorney and as a town justice without violating any ethics principles (cf. Opinions 07-60; 97-24). As always, the Committee cannot and does not opine as to the legal compatibility of these two offices (id.).
We note, however, that as long as the inquiring town justice serves as village attorney, the judge is disqualified, subject to remittal, in cases where the village is a party (see e.g. Opinion 19-114). If this restriction results in frequent disqualifications, the justice must choose between the positions of town justice and village attorney (see id.).