Ethics Opinion 252

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION
Committee on Professional Ethics

Opinion #252 – 05/24/1972 (29-72)

Topic: Village justice representing private client before village zoning board
Digest: Village justice may represent a client before village zoning board only where no conflict of interest and no appearance of professional impropriety
Code: Canon 9; EC 8-8, 9-2, 9-3, 9-6; DR 9-101; Judicial Canon: 31

QUESTION

May a part-time village justice represent a client in zoning variance and special permit applications before a zoning board of the village in which he serves as justice?

OPINION

Judicial Canon 31, inter alia, provides:”The judge who is not forbidden to practice law, and does practice, is in a position of great delicacy and must be scrupulously careful to avoid conduct in his practice whereby he utilizes or seems to utilize his judicial position to further his professional success.”Our Committee has interpreted these provisions as permitting part­time judges to engage in private practice not forbidden by law, before tribunals of which they are not a member, provided the circumstances would not give rise to any possible “appearance of impropriety, prejudice or favoritism.” N.Y. State 150 (1971). See also, N.Y. State 19 (1965); N.Y. State 39 (1966); N.Y. State 57 (1967); N.Y. State 146 (1970); N.Y. State 214 (1971); N.Y. State 228 (1972); and N.Y. State 2 (1972).The ethical propriety of a part-time village justice representing private client before a zoning board of the village in which he serves justice depends upon the circumstances of each particular case.  The representation would be proper only if it were clear that there were between his duties to the public as a judge and his duty of undivided loyalty to his client; and provided there were a total absence of “even the appearance of professional impropriety.” Canon 9. See also, EC 9-2; EC 9-3; EC 9-6; EC 8-8; DR 9-101.For example, the part-time village justice could not represent a client in zoning or other litigation to which the village were a party. Nor should he undertake to represent a private client in a zoning matter, if there were any possibility that his client might be charged with a violation of a village zoning ordinance. Service by the village justice as a village zoning board member would, of course, likewise disqualify him from all practice involving zoning within the board’s jurisdiction.The mere fact that the village pays the justice’s salary would not, however, disqualify him from representing private clients in zoning variance and special permit applications before the village board. Cf. A.B.A. Inf. 798 (1964).

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