Opinion 09-03

March 12, 2009

Digest:         A part-time judge who is not a lawyer, but who represents landlords in court proceedings pursuant to a Power of Attorney and also advises and assists “clients” about eviction proceedings, is subject to the same restrictions applicable to lawyer judges, both when he/she appears before other lawyer judges presiding in other courts in the same county where he/she presides and when he/she sits as the presiding judge.

Rules:          Judiciary Law §212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.6(B)(2), (4); 101.1; Opinion 96-39 (Vol. XIV).

Opinion:

         A part-time non-lawyer judge asks whether it is ethically permissible for him/her to continue to perform services for property owners, including prosecuting evictions, assisting landlords to prosecute evictions, and providing petitioners with the necessary paperwork to commence and prosecute evictions. The judge appears in eviction proceedings pursuant to a Power of Attorney granted by the landlord/petitioner. According to the judge, “the evictions are never in the same court that I will be presiding over.” The judge also asks whether it is ethically permissible to charge fees for performing these services.

         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 part-time judge may accept private employment that is not incompatible with judicial office and that does not conflict or interfere with the proper performance of his/her judicial duties (see 22 NYCRR 100.6[B][4]). However, a part-time judge is prohibited from practicing law in the court on which the judge serves or in any other court in the county in which his/her court is located before a judge who is permitted to practice law (see 22 NYCRR 100.6[B][2]).

         In Opinion 96-39 (Vol. XIV), the Committee advised that a part-time judge may not accept employment with an independent contractor that provides court security services in the federal courts as a Special Deputy Marshal. The Committee concluded that the responsibilities of this position - which are set forth in detail in Opinion 96-39 - are so similar to those performed by Deputy U.S. Marshals, uniformed court officers, deputy sheriffs, police officers, constables and others with peace and police officer status and powers, that such employment would be the functional equivalent of a position that confers peace officer status. Therefore, the Committee concluded that the proposed employment was a prohibited extra-judicial activity (id.). Accordingly, the Committee advised that it is ethically impermissible for a part-time judge to work as a Special Deputy Marshal (id.).

         Similarly, although the judge in the present inquiry is not a lawyer, he/she performs services that a lawyer traditionally performs. According to the inquiring judge, he/she represents landlords in court pursuant to a Power of Attorney, advises landlords as to the proper procedures to be followed to accomplish an eviction, and prepares for others the documents necessary to commence and prosecute evictions. Whether the inquiring judge is legally authorized to provide these services to landlords or other property owners is a question that the Committee has no jurisdiction to answer (see Judiciary Law §212[2][l]; 22 NYCRR 101.1). If the judge does have the legal authority to provide these services, then it is not unethical to do so. However, because the judge performs the same services on behalf of “clients” as would a lawyer, it is the Committee’s view that he/she is subject to the same restrictions that apply to a lawyer judge, both with respect to appearing before other lawyer judges who preside in other courts in the same county where the inquiring judge presides and as a presiding judge (see 22 NYCRR 100.6[B][2]).