Opinion 09-12

January 29, 2009

Digest:         A full-time judge who owns a condominium unit may act pro se to assert his/her personal rights as an individual owner in an action against the condominium board, but may not lead or advise the other condominium owners in making litigation decisions or give advice to legal counsel hired to represent a group of condominium owners in the dispute against the condominium board.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(G); Opinions 04-02; 03-139; 90-11 (Vol. V); 87-11 (Vol. I); 87-04 (Vol. I).

Opinion:

         A full-time judge owns an apartment in a condominium where several owners including the judge are in a dispute with the condominium board about certain action the board intends to take. The judge advises that he/she and other condominium owners have formed a committee to address the condominium board’s intended action and that a steering committee was formed to meet with and hire an attorney to represent the condominium owners in their dispute. The judge explains that, due to his/her judicial status, the other owners look to him/her for leadership in the matter. The judge inquires as to the extent to which he/she may continue to participate in the committee’s activities.

         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 full-time judge is prohibited from practicing law but may act pro se (see 22 NYCRR 100.4[G]).

         The Committee previously has advised that a judge is not precluded from bringing an action on his/her own behalf in a court having jurisdiction of the action (see Opinion 03-139; 90-11 [Vol. V]). However, a judge who had intervened in an appeal on a political-legal question as a pro se litigant before he/she assumed the bench, may not continue in that capacity after assuming the bench where he/she was appearing in a quasi-representative role like that of an expert witness or an attorney representing the people of a county (see Opinion 87-11 [Vol. I]; 87-04 [Vol. I]). Similarly, while a full-time judge may continue to hold stock in a closely held corporation and handle legal matters concerning the corporation that are strictly personal to him/her, the judge may not represent the corporation or provide legal advice (see Opinion 04-02).

         The judge in the present inquiry also may be a party to the anticipated lawsuit in his/her capacity as a property owner and may assert his/her personal rights. Notwithstanding his/her status as a party, the inquiring judge may not give legal advice to or otherwise represent other condominium owners in the dispute with the condominium board. In addition, the judge must avoid any appearance that he/she is leading or advising the other condominium owners in making litigation decisions, even though their property interests and the judge’s property interests appear to be identical. The judge also should not provide advice to any counsel hired to represent the condominium owners in their dispute with the condominium board. Such actions would exceed the scope of any permitted self representation, impermissibly involving the judge in a quasi-representative role with respect to the other condominium owners (see Opinions 87-11 [Vol. I]; 87-04 [Vol. I]). However, the inquiring judge may participate in this matter to the same extent as any other condominium owner who is challenging the condominium board’s intended action.