Opinion 01-05

January 25, 2001

Digest:         A part-time lawyer judge should not represent parties in a Family Court custody/visitation proceeding where there is a criminal proceeding pending in the judge's court which has been brought against the judge's client by the other parent and which involves allegations and issues that would be material in the Family Court proceeding.

Rule:            Jud. Law 16; 22 NYCRR 100.4(A)(3); 100.6(A); Opinion 99-34 (Vol. XVII).

Opinion:

         A part-time lawyer-town judge is being retained by a long-time client to represent her and her son in a Family Court custody/visitation matter concerning her grandson. The son currently has a criminal matter pending in the town court before the inquirer's co-justice. The complainant in that matter is the son's girlfriend who is also the respondent in the Family Court proceeding. The charge involves "alleged violence against her person." Also, a temporary order of protection has been issued in the town court barring the grandmother and son from contact with the girlfriend. The Family Court proceeding seeks resolution of custody and visitation of the child who was born out of wedlock to the son and his girlfriend.

         The judge asks whether there is a conflict which would preclude his/her representation of the son and his mother in the Family Court proceeding. In particular the judge claims that neither Judiciary Law §16, which prohibits a judge from acting as an attorney in any matter originating in the judge's court, nor Opinion 99-34 (Vol. XVII), which applied that section is applicable since the Family Court proceeding is not one which originated in the town court.

         While it is true that the Family Court proceeding did not "originate" in the judge's court, we are not of the view that this suffices to render the representation permissible. The fact is that the two proceedings are clearly intertwined, and that what occurs in the criminal proceeding could well affect a disposition in the Family Court proceeding. Indeed, it is difficult to envision a hearing in the Family Court that does not consider the matters being alleged in the town court criminal action. The Committee further notes that it is not unusual for emergency applications in Family Court matters to be made in the town court; and, in fact, the town court has already issued a protective order in the matter before it.

         Thus, the judge, as Family Court advocate, must be concerned with and must deal with the underlying facts of the allegations being made in the town court. In our view, that leads to the conclusion that where the judge will be contesting the allegations that are being made in his/her court, albeit in another venue, a situation is created which is incompatible with the judicial office held by the inquirer. 22 NYCRR 100.4(A)(3). In effect, the judge becomes a participant, albeit one-step removed, in a matter pending in his/her own court. It therefore follows, that if a part-time judge may not appear as an attorney in his or her own court (22 NYCRR 100.6[A]), he or she should not be appearing in another court in which related issues involving the same parties are the subject of a related litigation.