Opinion 08-96

June 6, 2008

Digest:         On the facts presented, an Administrative Judge may transfer a civil case that was commenced in the Supreme Court and subsequently transferred to the court in which the part-time lawyer judge (who represents the defendant) presides, to another court of competent jurisdiction to allow the part-time lawyer judge to continue representing his/her client.

Rules:          22 NYCRR 100.6(B)(2); Opinions 02-87; 90-191 (Vol. VI); 90-23 (Vol. VI).

Opinion:

         A part-time lawyer judge represents a client who is a defendant in a civil action that was commenced in the Supreme Court. Sometime after the action was commenced, the presiding Supreme Court Justice transferred the case to the court in which the part-time lawyer judge presides. Because the Rules Governing Judicial Conduct prohibit a part-time lawyer judge from practicing law in the court on which he/she serves (see 22 NYCRR 100.6[B][2]), the Administrative Judge with jurisdiction over the part-time judge’s court wants to transfer the case to another court to permit the part-time lawyer judge to continue representing his/her client. The Administrative Judge notes, however, that the Committee has advised in previous opinions that a matter cannot be transferred from a court where a part-time lawyer judge cannot appear to a court where he/she can appear in order to permit the part-time lawyer judge to continue representing a client in the case (see Opinions 02-87; 90-191 [Vol. VI]; 90-23 [Vol. VI]).

          Both the part-time lawyer judge and the Administrative Judge ask, given the circumstances in the present inquiry, whether it is permissible for the Administrative Judge to transfer the part-time lawyer judge’s case from the court in which the part-time lawyer judge presides to another court to permit the part-time lawyer judge to continue representing his/her client, the defendant.

         In the Opinions cited, the judges seeking to transfer cases knew at the time they commenced the cases or were retained to represent clients in the cases, that they could not appear in the courts where the cases would be or had been commenced (see id.). In the present inquiry, however, the part-time lawyer judge represents a defendant in a civil case that, at the time the client retained the part-time lawyer judge, had been commenced in Supreme Court, where he/she clearly is permitted to practice law. The conflict that now confronts the part-time lawyer judge and the Administrative Judge arose not due any action taken by the part-time lawyer judge but, rather, because the presiding Supreme Court Justice transferred the case to the court in which the part-time lawyer judge presides, a forum which neither the part-time lawyer judge nor his/her defendant client either selected or knew about when their lawyer-client relationship began.

         It is the Committee’s view that the rationale underlying section 100.6(B)(2) of the Rules Governing Judicial Conduct and the Committee’s prior Opinions, i.e. to prevent the possibility of lawyer-judges appearing before one another and giving one another favored treatment on a quid pro quo basis (see Opinion 90-23 [Vol. VI]), is not a concern in the present inquiry. The Administrative Judge, therefore, may transfer the case from the court in which the part-time lawyer judge presides to another court of competent jurisdiction to enable the part-time lawyer judge to continue representing his/her client.