Opinion 08-87

April 24, 2008

Digest:         A part-time judge, who is permitted to practice law, may have another attorney or law firm that is “of counsel” to him/her appear in another court in the same county where the judge presides, before another part-time judge who is permitted to practice law.

Rules:          22 NYCRR 101.1; 100.4(G); 100.6(B); 100.6(B)(2), (3); Opinion 96-36 (Vol. XIV).

Opinion:

         A part-time judge who is permitted to practice law inquires whether it is ethically permissible for him/her to have another attorney or law firm that is “of counsel” to him/her appear in another court in the same county where the inquiring judge presides, before another part-time judge who is permitted to practice law. The inquiring judge’s client will pay a legal fee to the inquiring judge who, in turn, will pay the “of counsel” attorney or law firm for the legal services performed.

         Pursuant to the Rules Governing Judicial Conduct, a part-time lawyer/ judge is permitted to practice law (see 100.6[B]; cf. 22 NYCRR 100.4[G]), but may not do so in his/her own court or in any court in the county in which the part-time lawyer/judge’s court is located, before another judge who is permitted to practice law (see 22 NYCRR 100.6[B][2]).

         In the Committee’s view, the “of counsel” relationship that the inquiring judge proposes is analogous to that of an associate in a law firm. While the associate of a judge who is permitted to practice law cannot appear before any judge in the court in which the judge presides (see 22 NYCRR 100.6[B][3]; Opinion 96-36 [Vol. XIV]), the associate is not restricted from practicing law in any other court in the county where the judge’s court is located (see 22 NYCRR 100.6[B][3]). Therefore, it is ethically permissible for the inquiring judge to have another attorney or a law firm represent the judge’s clients in courts where the judge him/herself cannot appear.

         The Committee declines to answer the inquiring judge’s question about the propriety of the fee arrangement, as ordinarily such matters are governed by the Code of Professional Responsibility, and therefore beyond the scope of the Committee’s jurisdiction (see 22 NYCRR 101.1).