Ezel / Ethics Opinions / NYSBA
NYSBA 1992-03-23

Can a part-time town judge represent private clients before the same town's zoning or planning board, and can the judge's law partners?

Short answer: The opinion concluded that a part-time judge may not appear before the zoning board of appeals or planning board of the same municipality, but partners and associates are not automatically disqualified; it depends on the facts and whether the judge is screened.
Currency note: this opinion is from 1992
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NY State Bar Ethics Opinion 632: A part-time judge before the town's zoning and planning boards

Short answer: The opinion concluded that a part-time city, town, or village judge may not represent private clients before the zoning board of appeals or planning board of the same municipality, while the judge's partners and associates are not automatically disqualified and may appear in those circumstances if the judge is screened and his name and influence are not used.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

View original opinion

Plain-English summary

A part-time municipal judge asked whether he could represent private clients before the zoning board of appeals and planning board of the same municipality, and whether his partners or associates could do the same.

Reconsidering its earlier N.Y. State 252 (1972), the committee agreed with the Office of Court Administration's Advisory Committee on Judicial Ethics that a part-time municipal judge may not practice before either the zoning board of appeals or the planning board of the same municipality. The committee relied on Canon 2 of the Code of Judicial Conduct, the broad mandate to avoid impropriety and its appearance, and on DR 8-101(A)(2), which bars a lawyer holding public office from using that position to influence a tribunal in favor of a client. Because the municipal judge is a permanent part of the municipality's governmental structure and has jurisdiction over some zoning matters, the appearance of impropriety required him to refrain from practice before those boards.

On the partners and associates, the committee declined both to bless the practice across the board and to impose automatic disqualification. Before the September 1, 1990 amendments, DR 5-105(D) would have extended one lawyer's disqualification to the whole firm automatically. After the amendment, automatic vicarious disqualification occurs only where the lawyer is disqualified under DR 5-101(A), DR 5-105(A), (B) or (C), DR 5-108, or DR 9-101(B). The judge's disqualification rested instead on CJC Canon 2 and DR 8-101(A)(2), none of the listed rules, so whether partners and associates may appear turns on the particular facts. They may not represent or imply that hiring the firm will bring the judge's influence to bear (DR 9-101(C)), and the judge may not use a partner or associate to circumvent Canon 2. But vicarious disqualification should not be imposed where the partners and associates have an ongoing independent practice before the boards, the judge is screened from any involvement, and the practice does not use or appear to use the judge's name and influence.

Currency note

This opinion was issued in 1992, under New York's former Code of Professional Responsibility and the former Code of Judicial Conduct. New York replaced the lawyer Code with the Rules of Professional Conduct in 2009 and has since revised its judicial-conduct rules. 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: Can a part-time judge appear before the zoning or planning board of the town where he sits?

A: No. The committee concluded that the appearance of impropriety under CJC Canon 2, and DR 8-101(A)(2), bar a part-time municipal judge from representing private clients before the zoning board of appeals or planning board of the same municipality.

Q: Are the judge's law partners automatically disqualified too?

A: No. Because the judge's disqualification rested on the Code of Judicial Conduct and DR 8-101(A)(2), not on the disciplinary rules that trigger automatic imputation under amended DR 5-105(D), the partners' eligibility depends on the facts.

Q: What conditions let a partner or associate appear before those boards?

A: The committee allowed it where the partners and associates have an independent ongoing practice before the boards, the judge is screened from any involvement, and they do not use or appear to use the judge's name or influence.

Background and rules framework

The opinion applied Canon 2 of the former Code of Judicial Conduct (avoiding impropriety and its appearance) together with DR 8-101(A)(2) of the former lawyer Code (a lawyer holding public office may not use the office to influence a tribunal for a client). The vicarious-disqualification analysis turned on the September 1, 1990 version of DR 5-105(D), which limited automatic imputation to disqualifications under enumerated rules. The closest Model Rule analogue for the imputation question is Rule 1.10; judicial conduct is now governed by the Model Code of Judicial Conduct.

Citations and references

Rules of Professional Conduct:

  • MR 1.10 (imputation of conflicts)
  • Model Code of Judicial Conduct Canon 2 (avoiding impropriety and its appearance)
  • NY DR 5-105(D); DR 8-101(A)(2); DR 9-101(C)

Other opinions cited:

  • N.Y. State 252 (1972): modified; part-time judge's practice before municipal boards
  • OCA Advisory Committee Joint Opinions 89-44; 89-60 and 90-59; 90-65 (1990): part-time judge may not appear before town zoning or planning boards

See also

Source