Opinion 07-14

April 19, 2007

Digest:         (1) A part-time judge’s recent “of counsel” relationship and present law office-sharing arrangement require the judge and those on his/her court to disallow a part-time Assistant District Attorney and any other former associate, sharing office space with the judge, from appearing in the judge’s court. (2) The judge is not precluded from presiding over matters handled by other members of the District Attorney’s office and may share offices with a part-time Assistant District Attorney who will not be appearing in the judge’s court. (3) The judge may preside over cases that were pending in the District Attorney’s office during the judge’s tenure as an Assistant District Attorney, provided the judge had no involvement with those cases and the judge believes that he/she can be fair and impartial.

Rules:          Jud. Law §471; 22 NYCRR 100.6(B)(3); Opinions 05-124; 97-46 (Vol. XV); 96-139 (Vol. XV); 96-36 (Vol. XIV); 95-86A (Vol. XIII); 93-116 (Vol. XI); 91-154 (Vol. VIII); 90-43 (Vol. IX); 89-70 (Vol. III).

Opinion:

         A lawyer who served as a part-time Assistant District Attorney and part- time private law practitioner was recently appointed to fill a part-time judicial vacancy. This newly-appointed judge asks us to make clear his/her disqualification obligations toward former and current office associates.

         Before the judge’s appointment to the bench, he/she was “of counsel” to a law firm with two other lawyers. One of the other lawyers was also a part-time Assistant District Attorney assigned to the court where the newly-appointed judge now serves. Approximately six months before the judge’s appointment, the partnership and “of counsel” status were dissolved. The three individuals, however, still maintain an “office sharing” arrangement. The lawyer who served as the Assistant District Attorney maintains that part-time status, but is no longer assigned to the judge’s court.

         The Rules Governing Judicial Conduct provide that a judge who is permitted to practice law shall not permit his/her partners or associates to practice law in the judge’s court. 22 NYCRR 100.6(B)(3); see also Judiciary Law § 471. Therefore, the former “of counsel” association, coupled with the ongoing law office relationship, requires the inquiring judge and any judge of the same court to disallow both the office-sharing Assistant District Attorney and the other law practitioner/former associate, from appearing in any matter, before any member of that court. Opinion 96-36 (Vol. XIV). (To the extent that previous opinions of this Committee, including Opinions 05-124, 97-46 (Vol. XV), 94-20 (Vol. XII), and 90-43 (Vol. V), appear to require the co-judge(s) to disqualify themselves, rather than to disallow appearance by the lawyers, those opinions are hereby clarified or modified. Opinions 05-124; 97-46 (Vol. XV); 94-20 (Vol. XII); 90-43 (Vol. V).

         The judge may, however, preside over matters handled by other members of the District Attorney’s office. Opinions 90-43 (Vol. V). Since the attorney who is an Assistant District Attorney will not appear in the judge’s court, either before that judge or another judge of that court, the inquirer may share office space with that prosecutor. Opinion 90-43 (Vol. V); 89-70 (Vol. IV).

         This Committee has also determined that a part-time judge may preside over cases that were pending in the District Attorney’s office during the judge’s tenure as an Assistant District Attorney, provided the judge had no involvement in those cases and the judge believes that he/she can be fair and impartial. Opinion 96-139 (Vol. XV); 95-86A (Vol. XIII); 93-116 (Vol. XI); 91-154 (Vol. VIII).