Opinion 04-67

June 3, 2004

Digest:         Providing an affirmation concerning a durable power of attorney that had been prepared by a full-time judge while a private attorney before assuming the bench, does not constitute the practice of law.

Rule:            N. Y. Constitution, Art VI, §20[b][4]; 22 NYCRR 100.4(G); Opinions 91-137 (Vol. VIII), 96-128 (Vol. XV)

Opinion:

         A full-time judge asks whether it is ethically permissible for him/her to provide an affirmation concerning a durable power of attorney that the judge prepared while a private attorney before assuming the bench.

         The New York State Constitution (Art VI, §20[b][4]) and the Rules Governing Judicial Conduct (22 NYCRR 100.4[G]) prohibit full-time judges from engaging in the practice of law. In two earlier opinions, this Committee concluded that providing information about a matter handled by a judge as a private attorney prior to assuming the bench does not constitute the practice of law: issuing a declaration of the circumstances involved in and the meaning of an agreement negotiated by the judge as a private attorney prior to assuming the bench does not constitute the private practice of law [Opinion 91-137 (Vol. VIII)]; providing an affidavit detailing the services rendered, the dates rendered, the amount of time expended, etc. concerning a contested estate matter that the judge handled as a private attorney prior to assuming the bench likewise does not constitute the practice of law [Opinion 96-128 (Vol. XV)].)

         Similarly, in the present inquiry, providing an affirmation as to the preparation of a durable power of attorney prepared by the judge while a private attorney before assuming the bench does not constitute the practice of law. Therefore, it is permissible.