Opinion 08-132

September 11, 2008

Digest:         A part-time judge who is permitted to practice law may practice in a city court in which both part-time judges who are permitted to practice law and full-time judges preside, if the city court clerk, at the outset, assigns all of the attorney/part-time judge’s cases to a full-time judge and so long as the said part-time judge who is permitted to practice law thereafter will never appear on such case before a part-time city court judge who is permitted to practice law.

Rules:          22 NYCRR 100.6(B)(2); Opinions 08-96; 04-40; 03-66; 02-87; 97-149 (Vol. XVI); 97-106 (Vol. XVI); 96-99 (Vol. XIV); 94-114 (Vol. XIII) 93-76 (Vol. XI); 90-191 (Vol. VI); 90-52 (Vol. V); 88-17(a)/88-25 (Vol. I).

Opinion:

         The inquiring judge presides full-time in a city court in which part-time judges who are permitted to practice law also preside. The inquiring judge knows that a part-time judge who is permitted to practice law (hereinafter “lawyer-judge”) and who presides in another court located in the same county as the city court is prohibited by the Rules Governing Judicial Conduct from practicing law before such part-time city court judges. The inquiring judge also is aware of the Committee’s previous opinions advising that a judge may not transfer a case in which a lawyer-judge represents a client from a lawyer-judge to a part-time judge who is not permitted to practice law as a means to circumvent the rule. The judge asks, however, whether he/she may direct the city court clerk to assign all cases in which a party is represented by a lawyer-judge to a full-time judge in the court and thereafter ensure that the part-time judge appearing on the case never appears before any of the part-time city court judges. The inquiring judge believes that this procedure would not violate the rules.

         Section 100.6(B)(2) of the Rules Governing Judicial Conduct provides, in relevant part, as follows:

(B) Part-Time Judge. A part-time judge:

(2) shall not practice law in the court on which the judge serves, or in any other court in the county in which his or her court is located, before a judge who is permitted to practice law . . .”.

         In Opinion 04-40, the Committee advised that a part-time city court judge who is permitted to practice law may appear in another city court in the same county where all the presiding judges are full-time, and therefore cannot practice law. And, in Opinions 03-66 and 96-99 (Vol. XIV), the Committee advised that a lawyer-judge may only practice before the full-time judges in a city court that is presided over by both full-time judges and part-time lawyer-judges.

         Nevertheless, the Committee also has determined that it is not permissible for a part-time judge to seek the transfer of a case to another judge, or for either a presiding or administrative judge to transfer a case to another judge, solely to allow a lawyer-judge to continue appearing in a case (see Opinions 02-87; 97-149 [Vol. XVI]; 97-106 [Vol. XVI]; 94-114 [Vol. XIII]; 93-76 [Vol. XI]; 90-52 [Vol. V]; 88-17[a]/88-25 [Vol. I]; cf. Opinion 08-96). And, in Opinion 90-191 (Vol. VI), the Committee advised that a lawyer-judge may not ask a court clerk to transfer his/her cases to the non-lawyer part-time judge prior to his/her client’s first return date so that he/she can continue to represent the client.

         After further consideration, the Committee is now of the view that the procedure proposed by the inquiring judge is permissible, so long as a case in which a lawyer-judge represents a party is assigned to a full-time judge at the outset, and the lawyer-judge never appears on the case before another lawyer-judge in the court. The Committee reiterates, however, that a presiding or administrative judge may not transfer, nor may a lawyer-judge seek to transfer to another court, a matter already assigned to a lawyer-judge solely for the purpose of permitting the lawyer-judge, or his or her partners or associates, to continue to appear as the attorney in the matter (see Opinions 08-96; 02-87; 97-149 [Vol. XVI]; 97-106 [Vol. XVI]; 94-114 [Vol. XIII]; 93-76 [Vol. XI]; 90-52 [Vol. V]; 88-17[a]/88-25 [Vol. I]).

         In light of this Opinion, Opinion 90-191 (Vol. VI) is overruled. In addition, Opinions 02-87; 97-149 (Vol. XVI); 97-106 (Vol. XVI); 94-114 (Vol. XIII) 93-76 (Vol. XI); 90-52 (Vol. V); 88-17(a)/88-25 (Vol. I) are overruled to the extent they are inconsistent with this Opinion.