Opinion 04-137
December 2, 2004
Digest: (1) Prior to assuming office, a newly-elected judge must forward any money held in escrow on behalf of clients to the new attorneys who will represent those clients. (2) A judge may continue to process settlement checks from cases settled prior to the beginning of the judge’s term of office but received after that time, and may sign a closing statement in such matters after assuming judicial office. (3) A judge may keep the judge’s law firm open for two months after the judge assumes judicial office to avoid a lapse in health insurance coverage, but during that period is disqualified from presiding over any matter in which the judge’s former partners appear even if all parties consent. (4) A judge assumes office upon taking and filing his/her oath of office. (5) A judge must arrange for new counsel to handle any outstanding motions scheduled to be heard after the judge assumes judicial office.
Rules: N.Y. Const. Art. 6, §20(b)(4); 22 NYCRR 100.3(E)(1); 100.4(G); Opinions 88-118, (Vol. II); 89-34, (Vol. III); 89-38, (Vol. III); 90-203, (Vol. VII); 93-44, (Vol. XI); 94-30, (Vol. XII); 95-12, (Vol. XII); 96-141, (Vol. XV); 98-92, (Vol. XVII).
Opinion:
A newly-elected full-time judge asks several questions about “winding down” his/her law practice:
(1) When is the last day which I may write checks as a signatory on my escrow and operating accounts?
(2) If I am expecting settlement checks from cases which were settled prior to January 2005 but are not received until after January 2005, do I need a caretaker to handle the disbursement of funds to the client as well as to myself? Also, am I allowed to sign the closing statement?
(3) The health insurance for judges does not take effect until February 12, 2005. May I keep the firm open and be allowed electronic funds transfers from the account for January and February 2005 so that I do not have a lapse of insurance?
(4) When am I considered a judge: Is it when I am sworn in, take the bench in January, or is it when I file my oath of office?
(5) There are presently several motions to be relieved as counsel. If the motions are scheduled after January 1, but filed before January 1, is it proper to retain counsel to handle these outstanding motions?
Article VI, section 20(b)(4) of the New York State Constitution and section 100.4(G) of the Rules Governing Judicial Conduct [22 NYCRR 100.4(G)] prohibit full-time judges from engaging in the practice of law. Prior to assuming office, therefore, a newly -elected full-time judge must terminate his/her law practice. Opinions 89-34, (Vol. III); 89-38, (Vol. III); 96-141, (Vol. XV). A judge assumes office upon taking and filing his/her oath of office. Opinion 98-92, (Vol. XVII).
With respect to the specific issues raised by the inquiring judge, in Opinion 96-141, (Vol. XV), this Committee advised that a newly-elected judge, prior to assuming office, should forward any money held in escrow on behalf of clients to the new attorneys representing those clients. With respect to settlement checks from cases settled prior to the beginning of a judge’s term of office but received after that time, a judge may continue to process such settlement checks consistent with the Code of Professional Responsibility. Opinion 95-12, (Vol. XII); See Opinions 88-118, (Vol. II), 90-203, (Vol. VII); 93-44, (Vol. XI). The judge may in that regard, sign a closing statement after assuming judicial office, but must arrange for new counsel to handle any outstanding motions in cases that have not concluded and which are scheduled to be heard after the judge assumes judicial office. (Opinions 89-38, (Vol. III); 89-136, (Vol. IV); 94-30, (Vol. XII)). Finally, the Committee sees no ethical impropriety should the judge keep his/her law firm open during January and February 2005 to avoid a lapse in health insurance coverage. During that time, and notwithstanding the parties’ consent, the judge is disqualified from presiding over any matter in which the judge’s former partners appear. 22 NYCRR 100.3(E)(1).