Joint Opinion 08-210/09-01

January 23, 2009

Digest:         A part-time town justice who is permitted to practice law may not practice law in any court on which he/she serves, but may practice law in another court located in the same county where he/she presides before a judge who is not permitted to practice law and in any court located outside the county where he/she presides before a judge who is permitted to practice law and a judge who is not permitted to practice law. The judge’s associate may practice law in any court located in the same county where the judge presides before a judge who is permitted to practice law and before a judge who is not permitted to practice law and may use law office stationery in connection with such appearances as long as it does not disclose the judge’s judicial status. Once a case is commenced, a judge may not transfer the case to another non-lawyer judge solely to allow a lawyer-judge to appear.  

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(G); 100.6(B)(1)-(3); Opinion Opinions 02-87; 97-149 (Vol. XVI); 90-52 (Vol. V); 89-12 (Vol. III).

Opinion:

         Two part-time town justices ask related questions about the practice of law by town and village justices. In Inquiry 08-210, a part-time town justice who is permitted to practice law seeks to clarify when he/she and his/her associate may appear in other town and village courts in the same county where he/she presides. In Inquiry 09-01, a part-time town justice who is permitted to practice law asks how he/she must proceed when a defendant invokes his/her right to counsel during arraignment and advises the judge that he/she intends to hire an attorney who also is a town justice in the same county where the inquiring judge presides to represent him/her in the case.

         A judge must avoid impropriety and the appearance of impropriety in all 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 part-time judge is permitted to practice law (see 22 NYCRR 100.6[B][1]; 100.4[G]) but may not do so in his/her own court or in any other court in the county in which his/her court is located before a judge who also is permitted to practice law (see 22 NYCRR 100.6[B][2]). In addition, a part-time judge who is permitted to practice law may not permit his/her partners or associates to practice law in the court where he/she presides, but they may practice law in another town or village court where a judge who is permitted to practice law presides (see 22 NYCRR 100.6[B][3]).

         Therefore, the judge in Inquiry 08-210 may not practice law in any other court in the county in which his/her court is located, before a town or village justice who also is permitted to practice law (see 22 NYCRR 100.6[B][1]). However, the Rules Governing Judicial Conduct do not prohibit the judge from practicing law in any other court in the county in which his/her court is located before a town or village justice who is not permitted to practice law (see id.). Furthermore, nothing in the Rules Governing Judicial Conduct prohibits the judge from appearing before either a judge who is permitted to practice law or a judge who is not permitted to practice law in a court located outside the county where he/she presides. With respect to the judge’s associate, he/she may practice law in another town or village justice court located in the same county where the judge presides both before a judge who is permitted to practice law and before a judge who is not permitted to practice law, but may not practice in the court where the inquiring judge presides (see 22 NYCRR 100.6[B][3]).

         With respect to Inquiry 09-01, a judge who is permitted to practice law need not discontinue an arraignment when the defendant invokes his/her right to counsel and expresses his/her intention to hire an attorney who also is a part-time judge permitted to practice law and presides in the same county as the inquiring judge as that lawyer judge is precluded by the Rules Governing Judicial Conduct from doing so (see 22 NYCRR 100.6[B][2] [part-time judge shall not practice law in any other court in the county in which his/her court is located, before a town or village justice who is permitted to practice law]). And, once the case is commenced in the inquiring judge’s court, he/she cannot transfer it to another non-lawyer judge solely to allow the lawyer-judge to appear (see Opinions 02-87; 97-149 [Vol. XVI]; 90-52 [Vol. V]).

         The judge in inquiry 08-210 also asks whether his/her associate may use the office letterhead that bears the inquiring justice’s name to communicate with town and village justices who are permitted to practice law and preside in town and village courts in the same county where the inquiring judge presides. The inquiring judge’s associate may use law office stationery bearing the judge’s name in connection with routine communications with a court regarding a matter in which the associate appears as long as there is no reference to the judge’s judicial position (see Opinion 89-12 [Vol. III] [part-time judge’s name may appear on his/her firm letterhead provided that it in no way refers to his/her judicial position]).