Joint Opinion 08-220/08-222

December 4, 2008

Note: Point (2) has been superseded by 22 NYCRR 100.6(B)(5).

Digest:         (1) A judge may hear matters involving his/her part-time co-judge’s client if the client is self-represented or represented by retained or assigned counsel, not associated with the co-judge’s private law practice. (2) A part-time judge who is temporarily assigned to another court and his/her partners or associates cannot appear in the court on pending or future cases while the temporary assignment order is in effect.  

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.6(B)(2)-(3); Opinions 08-144; 97-87 (Vol. XVI); 89-55 (Vol. III).

Opinion:

         In Inquiry 08-220, a part-time city court judge who is permitted to practice law asks whether he/she may preside over matters involving his/her part-time co-judge’s clients, when such clients are self-represented or are represented by retained or assigned counsel, not associated with the co-judge’s private law practice. In Inquiry 08-222, an administrative judge asks whether a partner, associate or client of a town or village justice who is assigned as an acting city court judge is prohibited from appearing before a full-time judge in the same city court and, if so, whether the prohibition is for the entire term of the assignment or only when the temporarily assigned judge actually sits. A temporary assignment may be effective for a particular term (e.g., one year), but the judge may sit only once or twice per week or once per month.

         A judge must avoid impropriety and the appearance of impropriety (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 who is permitted to practice law shall not practice law and shall not permit his/her partners or associates to practice law in the court in which he/she serves (see 22 NYCRR 100.6[B][2], [3]). A judge also shall not permit the partners or associates of his/her co-judge who is permitted to practice law to appear before him/her (see 22 NYCRR 100.6[B][3]).

         While the Rules Governing Judicial Conduct address the practice of law in a part-time lawyer judge’s court by the judge’s law partners and associates (see 22 NYCRR 100.6[B][2], [3]), they do not address whether a part-time lawyer judge may preside in a matter where his/her part-time co-judge’s client appears. In the Committee’s view, a judge’s impartiality cannot reasonably be questioned when a co-judge’s client appears before the judge and is self-represented or is represented by retained or assigned counsel, not associated with co-judge’s law firm (see 22 NYCRR 100.3[E][1]). Therefore, the Committee concludes that a judge may preside when his/her part-time lawyer co-judge’s client appears, as long as the client is self-represented or is represented by retained or assigned counsel, not associated with the part-time lawyer co-judge’s law firm.

         However, the Rules Governing Judicial Conduct clearly prohibit a part-time lawyer judge, as well as his/her partners and associates, from appearing in the court in which the part-time lawyer judge presides (see 22 NYCRR 100.6[B][2]; Opinions 08-144; 97-87 [Vol. XVI]). The fact that a part-time lawyer judge is assigned temporarily and sits only on a limited or as-needed basis does not warrant a different result (see Opinion 08-144). Under these circumstances, either the part-time lawyer judge should decline the assignment as acting city court judge, or the judge and his/her partners and associates must withdraw from any pending or future cases in that court while the temporary assignment order is in effect (see id.).  

         The Committee, of course, has no jurisdiction to change this rule (cf. Opinion 89-55 [Vol. III]), but will forward a copy of this opinion to the Administrative Board of the Courts for consideration of the issues presented by these inquiries.