Opinion 05-63

June 9, 2005

Digest:         An Acting City Court Judge who is appointed by the mayor may continue in private practice with another attorney employed as an associate while that attorney seeks the office of mayor, but if that attorney is elected, the judge should no longer continue in law practice with the associate.

Rule:            22 NYCRR 100.2(A); 100.5(A)(1)(c), (e); 100.6(B)(3); Opinions 90-21 (Vol.V); 99-70 (Vol. XVIII).

Opinion:

         An Acting City Court Judge inquires whether it is permissible to continue in private law practice with an associate who seeks to be elected to the office of mayor, where the mayor exercises appointive power for the position of Acting City Court Judge.

         The judge has a small private law practice and employs an associate attorney and a secretary. The associate has recently informed the judge of a desire to run for the office of mayor in an upcoming election. The position of Acting City Court Judge is a part-time one which is appointed by the mayor. The judge has posed the following two queries:

1. May the associate attorney run for the mayoral seat, in light of the appointment power of the mayor, and still be in compliance with the Rules Governing Professional Conduct; and

2. If elected mayor, may the associate attorney continue in the employ of the judge in the private law firm.

         Section 100.2(A) of the Rules Governing Judicial Conduct requires a judge “to conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

         In Opinion 99-70 (Vol. XVIII) – which presented a related situation – this Committee stated:

Section 100.6(B)(3) of the Rules Governing Judicial Conduct relates to the practice of law by part-time judges. That rule prohibits a part-time judge from permitting his or her partners or associates to practice law in the court in which he or she is a judge. The partner was not allowed to practice law in the City Court prior to the candidacy for mayor and would still be prohibited during the campaign and after the election.

City Courts are state courts and City Judges are State officials. The mayor, as a city official has no control over the salary or other employment benefits of City Judges. Therefore, there is no appearance of impropriety manifested by the partnership relationship between the judge and the mayor.

In addition, the mere fact that the City Judge maintains a law partnership with an individual who seeks election as mayor does not manifest an endorsement of the partner’s candidacy and would not, therefore, violate the Rule prohibiting partisan political involvement by a judge. 22 NYCRR 100.5(A)(1)(c)(and (e).

Accordingly, the inquiring part-time judge may continue in private law practice with a partner, who seeks the elected office of mayor.

         However, in the instant matter there is a fundamental and decisive difference. The inquiring judge in the instant case holds the office of Acting City Court Judge, a position over which the mayor has appointive authority. Therefore, while it is settled that the associate attorney may continue in the employ of the inquiring judge during his or her campaign for mayor, the judge may not continue in law practice with the individual should he or she become mayor. The appearance of impropriety inherent in this relationship, given the appointive authority of the mayor, would in our opinion, constitute a bar to a continuing professional relationship (Opinion 90-21, (Vol. V) [mayor may not appear before judge he/she appointed]).