Opinion 02-87
October 24, 2002
NOTE: This Opinion is almost entirely overruled. Point (1) is partly overruled by Opinion 08-132; the surviving principle is that matters already assigned to a lawyer-judge may not be transferred solely for the purpose of permitting another lawyer-judge or his/her partners to continue to appear as attorneys in the matter. Point (2) is overruled in its entirety. Please see Opinion 10-73/10-100/10-167. In addition, the ethics rules limiting outside practice of law by nonjudicial court employees now appear at 22 NYCRR 50.6(a)-(f).
Digest: (1) A judge may not transfer, or seek a transfer of a matter to another court solely for the purpose of permitting a lawyer-judge or his or her partners or associates to continue to remain as the attorney in the matter (2) a part-time attorney-judge may not appear in the local court before another part-time attorney judge who also serves as a full-time Family Court hearing examiner, but may appear before the latter in Family Court in his/her capacity as a hearing examiner.
Rules: 22 NYCRR 25.40(a),100.6(B) (2); Opinions: 97-149 (Vol. XVII); 97-106 (Vol. XVI); 90-191 (Vol. VI); 90-52 (Vol. V.)
Opinion:
A County Court judge advises that a particular part-time lawyer-judge who presides in one of the local town courts is routinely retained in criminal cases which are pending in one of the city courts within that same county. The presiding judge in the City Court is a part-time lawyer judge who is permitted to engage in the practice of law. The inquirer indicates that, as county judge, he/she is asked to review transfer requests from the presiding City Court judge on the basis that the retained defense attorney is a fellow part-time judge, and thus is prohibited from appearing in the particular matter. 22 NYCRR 100.6(B)(2). The inquirer asks whether it would be permissible to transfer such cases to another part-time lawyer-judge who does not practice law as a private attorney, but who does serve as a full-time hearing examiner in Family Court.
The Rules Governing Judicial Conduct prohibit a part-time judge from practicing law in any court within the county before a judge who is also permitted to practice law. 22 NYCRR 100.6(B)(2). The Committee has previously advised that a judge may not transfer, or seek a transfer of a matter to another court solely for the purpose of permitting a lawyer-judge or his or her partners or associates to continue to remain as the attorney in the matter. Opinions 97-149 (Vol. XVI); 97-106 (Vol. XVI); 90-191 (Vol. VI); 90-52 (Vol. V). A request for the removal of an action from one local court to another must be supported by one of the statutorily enumerated reasons set forth in CPL 107.15 or CPLR 325(G) as dictated by the individual circumstances of the particular matter. In the circumstances presented, the local court is not under any disability or otherwise disqualified, but rather it is the retained attorney who is a judge, who, in these instances is under a disability by reason of section 100.6(B)(2). It follows that the transfer contemplated is not appropriate.
As to whether it is permissible for a part-time attorney judge to appear before another part-time attorney-judge, who does not practice law in a private capacity, but who does serve as a full-time hearing examiner in Family Court, we note that hearing examiners, although quasi-judicial officers of the court, are attorneys at law. The Rules of the Chief Judge prohibit hearing examiners from engaging in the outside practice of law. 22 NYCRR 25.40(a). The Committee finds that the prohibition of appearing before part-time attorney judges in their capacity as judges in a local court extends to a part-time attorney judge who is a full-time hearing examiner because a hearing examiner, although not engaged in a traditional law practice with private clients, is a person who has been admitted to the practice of law. The Committee is of the view that the same prohibition should apply because the spirit and intent of section 100.6(B)(2) is implicated. The prohibition underlying that section seeks to prevent possible abuse in the judicial process where two licensed attorneys within the same forum, albeit with different roles, might be influenced by other outside legal matters in which they may or might become involved, on behalf of other clients. Therefore, the Committee concludes that a part-time lawyer judge may not appear before another part-time lawyer judge who also serves as a full-time hearing Family Court hearing examiner. However, appearances can be made before the latter in his/her capacity as a Family Court hearing examiner.