Opinion 09-100

June 3-4, 2009

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         (1) A judge may not permit a lawyer who rents part of the law office suite from the judge and does “of counsel” work for the judge’s law practice to appear before either judge who presides in the judge’s court. (2) The judge should not transfer the lawyer’s cases to another court solely for the purpose of allowing him/her to continue the representation.

Rules:          CPLR §325(g);Judiciary Law §471; 22 NYCRR 100.2; 100.2(A); 100.3(F);100.6(B)(1); 100.6(B)(3); 1200.7(a)(4); Joint Opinion s 09-65/09-67; 94-93/94-107 (Vol. XII); Opinions 09-65; 08-132; 08-118; 07-14; 06-61; 06-54; 05-124; 02-87; 01-60; 97-106 (Vol. XVI); 97-60 (Vol. XV); 96-36 (Vol. XIV); 94-107; (Vol. XIII); 94-20 (Vol. XII); 89-08 (Vol. III); 89-07 (Vol. III); 88-39 (Vol. II).

Opinion:

         A part-time judge who practices law rents office space to an attorney who maintains a separate telephone number and separate support staff. The judge and the attorney share a common reception area and conference room. The judge’s name and the attorney’s name appear separately on signage identifying their respective law offices. The judge advises that on occasion the attorney may act “of counsel” for the judge’s practice, but never in a matter in the judge’s court. The judge asks whether the attorney may appear before the judge’s co-judge. If not, the judge asks whether both judges may disqualify themselves from presiding when the attorney appears in the court and then apply to county court for transfer or reassignment of the attorney’s cases.

         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 who is a lawyer is permitted to practice law (see 22 NYCRR 100.6[B][1]) but cannot permit his/her partners or associates to practice law in the court where he/she presides (see Judiciary Law §471; 22 NYCRR 100.6[B][3]).

         In prior opinions, the Committee has construed the term “associate” more broadly than the traditional notion of an associate in a law firm. For example, in Opinion 88-39 (Vol. II), the Committee advised that a lawyer with whom a judge shares office space should be considered the judge’s associate for the purpose of §100.6(B)(3) of the Rules Governing Judicial Conduct (see also Joint Opinion 09-65/09-67 [attorneys who are judge’s landlords cannot appear in the judge’s court where the judge and the attorneys share a “common reception area” but separate receptionists]; Opinions 07-14 [attorneys who previously had an “of counsel” relationship with a judge and who currently share office space with the judge cannot appear in the judge’s court]; 97-60 [Vol. XV] [attorney who rents office space from a judge and who shares a fax number with the judge cannot appear in the judge’s court]; 94-107 [Vol. XIII] [sharing office space and secretarial services “results in an inference of association that invokes the prohibition”]. And, in Opinion 96-36 (Vol. XIV), the Committee advised that the term “associate” includes members of a law firm with which the judge has an “of counsel” relationship (see also Opinion 06-54 [the “of counsel” designation “impl[ies] an on-going association” between lawyers] and 22 NYCRR 1200.7[a][4] [“of counsel” designation may be used “if there is a continuing relationship [between the lawyers] other than as a partner or associate”]). The Committee also has advised that an attorney who prepares real estate contracts for a judge on a per diem basis is the judge’s associate for the purpose of §100.6(B)(3) of the Rules Governing Judicial Conduct (see Opinion 01-60). The fact that an attorney maintains an independent practice does not negate the conclusion that the attorney and the judge are associates in the practice of law (see id.).

         Accordingly, the attorney who shares an office suite with the judge, including reception and conference areas, and who “from time to time” acts “of counsel” to the judge’s practice is the judge’s “associate” within the meaning of Rule 100.6(B)(3). Consequently, the inquiring judge may not permit the attorney to appear in his/her court. Nor may the inquiring judge or his/her co-judge transfer or re-assign the attorney’s cases to another court where he/she can appear (see Opinion 02-87).

         However, after further consideration, the Committee is now of the view that should the inquiring judge terminate the attorney’s “of counsel” status so that the only remaining link between the attorney and the judge is sharing a common reception area and conference room, the attorney would no longer be considered the judge’s “associate.” Attorneys who are solo practitioners often enter into such office-sharing arrangements for purely economic reasons and maintain entirely separate law practices. The Committee believes that simply because one attorney who enters into such an arrangement is a part-time judge, the other attorney’s ability to practice law should not be limited.

         Therefore, where a mere tenancy between a part-time judge who practices law and another attorney involves only sharing a reception or waiting room and a conference room, with no other indicia of association between them, the judge may permit the attorney to practice in the judge’s court. Therefore, if the attorney who shares this space with the attorney/judge appears before that judge, the latter is disqualified subject to remittal (see 22NYCRR 100.3(F), unless one of the parties is unrepresented, in which case remittal is unavailable. In that event, or if the parties do not remit the disqualification, the judge must exercise recusal and the matter must be transferred to the co-judge if there be one. If not, then it must either be transferred to another court pursuant to CPLR §325(g), or a visiting judge may be assigned temporarily to hear it.

         In light of this Opinion, the Committee overrules Joint Opinion 09-65/09-67 to the extent that it prohibits attorneys, who occupy office space in a building where a part-time judge who practices law will rent an office, a conference room, a small, open area between the two, and will share a common reception area, from appearing before the judge’s co-judge.

         In addition, the Committee modifies the following Opinions to the extent that they are inconsistent with this Opinion: Opinions 08-118 (judge who rents office space from domestic violence attorney); 06-61 (part-time judge ends partnership with law firm, but becomes a tenant of the law firm); 05-124 (part-time judge ends association with law firm, but remains in the same building as the law firm’s tenant); 94-20 (Vol. XII) (part-time judge leaves law firm’s employment, but rents office space from the law firm); 88-39 (Vol. II) (lawyer who shares office space with a part-time judge is considered the judge’s associate).

         However, this Opinion does not either overrule or modify the following Opinions, as the relationship between the judge and one or more attorneys is more than a mere tenancy that includes access to common areas: Opinions 09-65 (part-time judge sublets office space and shares facsimile and copy machine); 07-14 (part-time judge continues to share office space with attorneys with whom the judge had recently maintained a partnership and of-counsel relationship); 97-60 (Vol. XV) (attorney is tenant in building owned by part-time judge, letterheads of attorney and judge include the same facsimile number, and judge has referred clients to the attorney); Joint Opinion 94-93/94-107 (Vol. XII) (following dissolution of partnership, former partner rented space from part-time judge, advertised under partnership name and displayed a prominent sign in front of the office bearing both names; and part-time judge shares office space and secretarial services with attorney); Opinions 89-08 (Vol. III) (part-time judge terminates previous law partnership and practices as solo practitioner, but will share law offices adjacent to those of former law firm, will have separate entrance, stationery, telephone and personnel, but will share fees with his/her former law firm); and 89-07 (Vol. III) (part-time judge rents office space from attorney, including use of the library and secretarial services, and attorney refers cases to and shares fees with judge).

         Where part-time judge terminates a former relationship with another attorney or law firm, he/she must do so meaningfully and effectively, for example, by publicizing in newspaper advertisements the fact that the relationship no longer exists and by eliminating all indicators of the prior relationship so that all that remains is the mere tenancy that may include the use of a common waiting or reception area and a conference room.