Can a New York lawyer who is attorney for the town's zoning and planning boards also serve as a town justice?

Plain-English summary

A lawyer who served by town-board appointment as attorney for the zoning board of appeals and the planning board asked whether he could also serve as one of the town's two town justices while keeping those board positions. The committee began with the Rules Governing Judicial Conduct, which allow a part-time judge to accept private or public employment provided it is not incompatible with judicial office and does not conflict with the proper performance of judicial duties (22 NYCRR 100.5(h)). It noted that part-time judges may engage in private practice before tribunals of which they are not a member, so long as the circumstances do not give rise to any appearance of impropriety, prejudice, or favoritism (N.Y. State 252 (1972)).

The committee concluded that a town justice who is also employed as an attorney for the town might not be perceived as impartial, particularly where the town is itself a party before that justice. It treated the situation as no different from any other client of the attorney appearing before that attorney sitting as a town justice: the opposing party could perceive the justice as less than impartial or as having a conflict of interest. Because that perception must be avoided, the dual service would be improper, and the question was answered in the negative.

Currency note

This opinion was issued in 1985, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 and restructured judicial-conduct regulation under the Rules Governing Judicial Conduct (22 NYCRR Part 100). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could the board attorney also sit as a town justice?

A: No. The committee held the dual service improper because litigants could perceive the justice, also employed by the town, as less than impartial, especially where the town is a party before the justice.

Q: May a part-time town justice keep any outside employment?

A: Yes, in general. The committee acknowledged that a part-time judge may hold other employment and practice before tribunals on which the judge does not sit, but only where it creates no appearance of impropriety, prejudice, or favoritism, which this arrangement did.

Background and rules framework

The opinion applied the Rules Governing Judicial Conduct, specifically 22 NYCRR 100.5(h) on a part-time judge's outside employment, together with the broader concern for the appearance of impropriety reflected in the judicial conduct rules. The closest current Model Rule analogue for the appearance concern is Canon 2 of the Code of Judicial Conduct.

Citations and references

Rules of Professional Conduct:

• Rules Governing Judicial Conduct, 22 NYCRR 100.5(h) (part-time judge's outside employment)

Other opinions cited:

• N.Y. State 252 (1972): a part-time judge may practice before tribunals on which the judge does not sit, absent any appearance of impropriety

See also

• NY State Bar Op. 593: Confidential law clerks for town and village justices
• NY State Bar Op. 574: A judge whose former lawyer represents a party

Source

• Landing page: https://nysba.org/opinion-571/