Opinion 23-115
October 26, 2023
Digest: A part-time town justice may not remain “of counsel” to the law firm that represents the town planning board.
Rules: 22 NYCRR 100.2(A); 100.2(A); 100.3(A); 100.3(E)(1); 100.6(B)(1)-(4); Opinions 23-67; 21-110; 19-31; 99-162/99-180/00-63.
Opinion:
A part-time town justice asks if it is ethically permissible to remain “of counsel” to a law firm that represents the town’s planning board. The inquiring judge is not involved in representing the town planning board and does not receive any revenue from the firm’s representation. Moreover, legal challenges to the town planning board’s decisions are heard in supreme court rather than the local town court.
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 judge must disqualify from any proceeding in which the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). Although a part-time attorney judge may practice law (see 22 NYCRR 100.6[B][1]-[3]) and may accept private employment or public employment that is compatible with judicial office and does not conflict or interfere with proper performance of the judge’s duties (see 22 NYCRR 100.6[B][4]), a judge’s judicial duties nonetheless “take precedence” over all the judge’s other activities (see 22 NYCRR 100.3[A]).
While the present inquiry is a matter of first impression for us, our prior opinions provide significant guidance. We have previously advised that a town justice may not serve as counsel to the town planning board or as counsel to the town zoning board of appeals in the town where the judge sits (see Opinions 23-67; 99-162/99-180/00-63). As we explained in Opinion 23-67 (citations omitted):
it would create an appearance of impropriety for a town justice to serve as counsel to the town planning board, notwithstanding the judge’s representations that the planning board does not address zoning matters or zoning/code enforcement and is independent of the town board. We note, for example, that the planning board’s work may involve matters of local public controversy and/or the issuance of controversial decisions which may result in Article 78 proceedings in Supreme Court naming the planning board as a respondent.
In our view, similar considerations apply even if it is the judge’s law firm colleague(s), rather than the judge personally, who undertake the ongoing representation of the town planning board. Our conclusion here is bolstered by the consideration that a “bright-line rule is easier to remember and follow” (Opinion 19-31).[1]
Thus, assuming the law firm wishes to continue representing the town planning board, the inquiring town justice must choose between the two positions. That is, the judge must either discontinue their “of counsel” affiliation with the law firm or resign from judicial office.
[1] We have distinguished between serving “as ongoing municipal counsel” and representing the local municipality “on discrete individual matters” (Opinion 21-110).