Opinion 09-233

January 27-28, 2010

Digest:         A part-time lawyer-judge who owns a building and rents space to four other businesses, including two attorneys, may not permit the attorneys to appear before either judge in the judge’s court because the attorneys are the judge’s tenants and they share a fax machine and number with the judge.

Rules:          22 NYCRR 100.2; 100.2(A); 100.6(B)(1); 100.6(B)(3); 1200, Rule 1.6; Opinion 09-100; Joint Opinion 09-65/09-67; Opinion 97-60 (Vol. XV).

Opinion:

         A part-time village justice who also is a practicing attorney maintains a law office in a building he/she owns. The judge rents space to four other businesses, including two attorneys. Although the inquiring judge and the other attorneys in the building all maintain separate and independent law practices, they all share a common fax number and fax machine with each other and the other two businesses in the building. The judge asks whether he/she may assign cases to one of the attorneys, who is a retired Assistant District Attorney and who now is a part-time practitioner.

         A judge must avoid impropriety and the appearance of impropriety in all of the judge’s activities (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 (22 NYCRR 100.2[A]). A part-time judge who is a lawyer is permitted to practice law (22 NYCRR 100.6[B][1]), but cannot permit his/her partners or associates to practice law in the court in which he/she presides (22 NYCRR 100.6[B][3]).

         In the past, when applying §100.6(B)(3) of the Rules Governing Judicial Conduct, the Committee has construed the term “associate” more broadly than the traditional notion of an associate in a law firm. For example, in Joint Opinion 09-65/09-67¹,a part-time judge who sublet office space for his/her private law practice from another attorney that included the use of office space, fax and copy machines, a reception area and a conference room, the attorney/landlord could not appear in the judge’s court because the judge and the attorney/landlord were associates for the purpose of §100.6(B)(3) . And, in Opinion 97-60 (Vol. XV), where an attorney and a judge included the same fax number on their letterhead and the attorney rented space in a building the judge owned, the Committee advised that there is at the least an appearance of association that would invoke the prohibition in §100.6(B)(3).

         Similarly, the landlord/tenant relationship between the inquiring judge and the tenant/attorneys that includes sharing a common fax number and fax machine are considered associates for purposes of §100.6(B)(3). Therefore, the inquiring judge may not assign cases to the retired assistant district attorney as he/she cannot appear either before the inquiring judge or his/her co-judge.

         However, where a mere tenancy between a part-time judge who practices law and another attorney involves sharing a reception or waiting room and a conference room only, with no other indicia of association between them, the judge may permit the attorney/tenant to practice in the judge's court (see Opinion 09-100). But, if the attorney/tenant appears before the judge who is his/her landlord, the judge must disqualify him/herself, subject to remittal (see id.; 22 NYRCC 100.3[F]).

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          ¹Joint Opinion 09-65/09-67 was overruled by Opinion 09-100, except that the result in inquiry 09-65 was reaffirmed as cited herein.