Joint Opinion 09-65/09-67

March 12, 2009

THIS OPINION HAS BEEN MOSTLY OVERRULED BY OPINION 09-100, EXCEPT THAT THE RESULT FOR INQUIRY 09-65 HAS BEEN REAFFIRMED ON OTHER GROUNDS. PLEASE CONSULT OPINION 09-100 BEFORE RELYING ON THIS OPINION.

Digest:         A part-time lawyer judge who shares office space with another attorney or law firm, and any other judge who presides in the same court as the part-time lawyer, must prohibit the other attorney or members of the law firm from appearing in the court.

Rules:                    Judiciary Law §471; 22 NYCRR 100.2; 100.2(A); 100.5(f); 100.6(B); 100.6(B)(3); Opinions 08-118; 97-60 (Vol. XV); 96-36 (Vol. XIV); 94-93/94-107 (Vol. XII); 88-39 (Vol. II).

Opinion:

         Two part-time judges who are permitted to practice law ask similar questions about whether attorneys with whom they share office space may appear in their respective courts.

         The judge in Inquiry 09-65 sublets office space for his/her private law practice from another attorney who rents the entire building where the office space is located. According to the judge, the rent includes the office space, use of the fax and copy machines, and use of a reception area and conference room. The judge also advises that a third attorney sublets office space from the attorney/landlord on the same terms. He/she indicates that none of the lawyers share work, files or fees, and that the names of all three attorneys are listed separately on a sign outside the building. According to the inquiring judge, the attorneys do not represent themselves as members of one firm or as partners.

         The judge in Inquiry 09-67 proposes to rent the unoccupied third floor of a stand-alone three-story building. The judge advises that the rental space consists of an office, conference room, and a small, open area in between. According to the judge, he/she would share a common reception area with the law firm that occupies the remainder of the building, but would not share a receptionist. The judge further advises that he/she will pay a fair market rental based on a market analysis prepared by a local real estate agency.

         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]). In addition, a judge who is permitted to practice law shall not permit his/her partners or associates to practice law in the judge’s court (see Judiciary Law §471; 22 NYCRR 100.6[B][3]).

         When applying section 100.6(B)(3) of the Rules Governing Judicial Conduct in past 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 purposes of this Rule. And, in Opinion 96-36 (Vol. XIV), the Committee advised that the term “associate” includes members of a law firm in which the inquiring part-time judge is “of counsel.”

         In Joint Opinion 94-93/94-107 (Vol. XII), the Committee considered questions similar to those posed in the present inquiries. In one case, a part-time judge and an attorney appearing before another judge in the part-time judge’s court previously had been partners in the practice of law, but had terminated their partnership. Thereafter, the part-time judge’s former partner rented space on the same premises where the part-time judge’s office was located, continued to use the partnership name in advertisements, and displayed the partnership name on a prominent outdoor sign on the office premises. In the other case, a part-time judge shared office space and secretarial services with an attorney who appeared before another judge in the part-time judge’s court. In both instances, the Committee concluded that on the facts presented, the association of the part-time judges and the attorneys was so close as to invoke the prohibition set forth in former section 100.5(f) (now section 100.6[B][3]) of the Rules Governing Judicial Conduct and that, therefore, the respective attorneys could not appear before another judge in the part-time judge’s court. Similarly, in Opinion 97-60 (Vol. XV), the Committee advised that where the letterheads of an attorney and a part-time judge include the same fax number and the attorney is a tenant in a building owned by the part-time judge, there is at least an appearance of association that would invoke the prohibition in 22 NYCRR 100.6(B)(3). And, in Opinion 08-118, the Committee advised that a part-time lawyer judge may rent space from an attorney who almost exclusively represents female victims of domestic violence, but neither the domestic violence attorney nor his/her partners and/or associates may appear in the part-time judge’s court.

         For the same reasons, the attorneys from whom the judges in the present inquiries rent office space also are precluded from appearing in the judges’ courts, either before the inquiring judges or their co-judges, as the relationship of landlord/tenant as described in the inquiries is close enough to invoke the prohibitions set forth in 22 NYCRR 100.6(B)(3) (see Joint Opinion 94-93/94-107 [Vol. XII]).