Opinion 08-118
October 23, 2008
Please Note: 1. This opinion has been modified by Opinion 09-100 to the extent that it suggests that a mere tenancy or office-sharing agreement, without more, makes an attorney the "associate" of a part-time judge under Rule 100.6(B)(3). Accordingly, please consult Opinion 09-100 before relying on point 5 of the Digest and the last paragraph of this opinion. 2. This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. 3. Opinion 05-134, which is cited herein for its discussion of certain prior opinions, has been overruled by Opinion 12-44, albeit on grounds not relevant to this opinion.
Digest: (1) A part-time judge should not perform “of counsel” work for a domestic violence attorney, when such work would include representing female domestic violence victims whose legal fees are paid by a battered woman’s organization that operates in the same county where the judge presides and that contracts with the domestic violence attorney for legal services; (2) A part-time judge may perform “of counsel” work for a domestic violence attorney who contracts to provide legal services for a battered woman’s organization that operates in the same county where the judge presides so long as the judge does not perform legal work that is funded by such contract; (3) A part-time judge should not form a law partnership with a domestic violence attorney that contracts with a battered woman’s organization that operates in the same county where the judge presides, even if the judge will not perform any legal services that are funded by such contract; (4) A part-time judge may rent space from a domestic violence attorney who contracts to provide legal services for a battered woman’s organization that operates in the same county where the judge presides and (a) may perform “of counsel” work for such attorney so long as the judge does not perform legal work that is funded by such contract, but must disclose such relationship and may have to exercise recusal in any case in his/her court involving domestic violence where the victim receives services from the same battered woman’s organization and (b) must preclude the domestic violence attorney and his/her partners or associates from appearing in the judge’s court; and (5) A part-time judge may rent office space from a domestic violence attorney, but neither the attorney nor his/her partners or associates may appear in the judge’s court.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.4(A)(1); 100.4(D)(1)(c); 100.6(A); 100.6(B)(1); 100.6(B)(3); Opinion 08-116; 06-108; 05-152; 05-134; 05-62; 04-59; 99-46 (XVII); 98-53 (Vol. XVI)]; 96-36 (Vol. XIV);94-20 (Vol. XII); 89-08 (Vol. III); 88-39(Vol. II).
Opinion:
A part-time town/village justice who is permitted to practice law asks a series of questions about practicing law in association with another attorney. That attorney (hereinafter “domestic violence attorney”) almost exclusively represents female victims of domestic violence, is well known in the legal community as an advocate for female victims of domestic violence, and contracts with a battered women’s organization to represent victims of domestic violence. The organization, which also offers counseling to battered women, operates in the same county where the town/village justice presides. It is the Committee’s understanding that the battered women’s organization with which the domestic violence attorney contracts is actively engaged in advocacy on behalf of domestic violence victims throughout the county in which the judge presides and, therefore, is likely to be involved in many of the domestic violence cases that are heard in his/her court.
The inquiring town/village justice’s questions are as follows:
1. Would I be able to do “of counsel” work for this attorney, taking cases to represent women domestic violence victims where the clients’ legal services are being paid for through this attorney’s contract which is funded by [ ].
2. Would I be able to do “of counsel” work for this attorney, taking cases to represent [female] domestic violence victims where the clients’ legal services are not being paid for through this attorney’s contract which is funded by [ ], but instead are paid for by the clients themselves.
3. Would I be able to affiliate with this attorney’s firm as a partner, with the restriction that I not work on any cases that are funded through [the attorney’s] contract that is funded by [ ].
4. If I were not a partner at the firm, but was allowed to do “of counsel” work for this attorney, with the above referenced restriction, would I be able to rent space in the building owned by [the attorney’s] firm and where [the attorney’s] law firm is located.
5. If I were not affiliated with this attorney’s firm, either as partner or “of counsel,” would I be able to rent space in the building owned by [the attorney’s] firm and where [the attorney’s] firm is located, that is, as a solo practitioner renting space at [the attorney’s] firm.
A judge must avoid impropriety and even the appearance of impropriety in all of the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A judge shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).
Part-time judges are permitted to practice law (see 22 NYCRR 100.6[B][1]). Nevertheless, a part-time judge must comply with the Rules Governing Judicial Conduct (see 22 NYCRR 100.6[A]) and ensure that his/her extra-judicial activities do not cast reasonable doubt on the judge’s capacity to act impartially as a judge (see 22 NYCRR 100.4[A][1]).
In a number of prior opinions dealing with a variety of circumstances, the Committee has addressed the issue of judges’ involvement with domestic violence advocacy organizations. In general, the Committee has concluded that judges should not participate with domestic violence advocacy organizations when to do so would cast doubt on the judge’s independence and impartiality. A judge, therefore, may not serve as a member of a Domestic Violence Community Coordinating Council that engages in vigorous advocacy on behalf of domestic violence victims (see Opinion 99-46 [Vol. XVII]); should not attend and participate in monthly meetings of a judges’ working group for a lawyers’ committee against domestic violence (see Opinion 04-59); and should not attend functions sponsored by a domestic violence advocacy organization, the sole purpose of which is to provide services for domestic violence victims in connection with court proceedings (see Opinion 05-62). The underlying basis for the Committee’s ultimate conclusions in the above-cited opinions was the Committee’s view that “[i]n each of these activities, the sponsor’s goal was to promote a point of view or to support one side in a particular class of cases” (Opinion 05-134). Therefore, a judge’s participation in these activities could reasonably cast doubt on his/her ability to remain impartial in those cases. Of particular concern are circumstances where the judge would “[a]ctively align[]” him/herself with the promotion of “offender accountability” (Opinion 06-108; accord Opinion 08-116).
For the same reasons, the inquiring judge’s impartiality might reasonably be questioned were he/she to perform “of counsel” work for the domestic violence attorney, when such work would include representing female domestic violence victims whose legal fees are paid by the battered women’s organization that contracts for legal services with the domestic violence attorney. The inquiring judge, therefore, should not perform such “of counsel” work for the domestic violence attorney. Nor should the inquiring judge affiliate with the domestic violence attorney’s firm as a partner even if he/she would not work on any cases that are funded through the contract with the battered women’s organization. The Committee assumes that, as a partner, the inquiring judge would share in the firm profits, a portion of which would result from the contract with the battered women’s organization. But even if that were not in fact the case, it would likely appear to be so, and judges must avoid even the appearance of impropriety (see 22 NYCRR 100.2).
The inquiring judge, however, is not precluded from establishing an “of counsel” relationship with the domestic violence attorney to represent female domestic violence victims who pay their own legal fees, while at the same time renting office space in the building the domestic violence attorney owns and that houses the domestic violence attorney’s law firm. In such case, however, the domestic violence attorney should not include the inquiring judge’s name on his/her law firm letterhead. In addition, the domestic violence attorney and his/her associates or partners would be precluded from practicing law in the inquiring judge’s court (see 22 NYCRR 100.6[B][3]; Opinions 96-36 [Vol. XIV]; 88-39 [Vol. II]). Finally, if the inquiring judge is “of counsel” to the domestic violence attorney’s law firm, the inquiring judge should thereafter inquire of the prosecuting attorney in criminal cases involving domestic violence and the plaintiff or plaintiff’s attorney in civil cases involving domestic violence as to whether the domestic violence victim involved in the case has received or is receiving services from the battered women’s organization that contracts with the domestic violence attorney. If the answer is no, the judge may continue to preside. If the answer is yes, and no party is self-represented, the judge then must disclose his/her “of counsel” relationship with the domestic violence attorney and afford the parties an opportunity to be heard on that issue. If any party asks the judge to recuse from the case, the determination to do so rests solely in the judge’s discretion. However, if the answer is yes and a party is self-represented, the judge must exercise recusal (see Opinion 05-152).
Finally, the inquiring judge asks whether he/she could simply rent space in the building the domestic violence attorney owns and where he/she maintains his/her law firm without any other affiliation with that firm. Pursuant to the Rules Governing Judicial Conduct, a judge shall not engage in financial and business dealings that involve the judge in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before the court on which the judge serves (see 22 NYCRR 100.4[D][1][c]). In prior opinions, the Committee has advised that attorneys with a law firm that is a lawyer/judge’s landlord may not appear in the lawyer/judge’s court (see Opinions 94-20 [Vol. XII]; 89-08 [Vol. III]; cf. 98-53 [Vol. XVI]). Therefore, should the inquiring judge become the domestic violence attorney’s tenant, neither the domestic violence attorney nor his/her partners or associates may appear in the judge’s court. And, if the judge has no business relationship with the domestic violence attorney other than that of tenant and landlord, the judge need not disclose that relationship when he/she presides in cases involving domestic violence where the parties are otherwise represented.