Opinion 10-126

October 28, 2010

Digest:         When a judge is temporarily assigned to serve in a City Court pursuant to Section 107 of the Uniform City Court Act, the judge’s partners and associates may continue to appear before all other judges of the City Court, unless there is a reason other than their colleague’s temporary assignment to the City Court which would preclude them from doing so.

Rules:          22 NYCRR 100.2; 100.2(A); 100.6(B)(3); 100.6(B)(5); Opinions 09-149; 09-135; Joint Opinion 08-220/08-222; Opinion 08-144.

Opinion:

         A part-time village justice who is permitted to practice law is interested in applying to serve as a part-time acting City Court judge.¹ The judge asks whether his/her law partners and associates will be able to appear in City Court if he/she were to serve in that capacity.

         A judge must avoid impropriety and its appearance (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge who is permitted to practice law shall not permit his/her partners or associates to practice law “in the court in which he or she is a judge” (22 NYCRR 100.6[B][3]), and his/her co-judges similarly shall not permit the practice of law in their court by the law partners or associates of “another judge of the same court” (id.). However, with respect to a judge who is temporarily assigned to another court, the Rules Governing Judicial Conduct provide as follows (22 NYCRR 100.6[B][5]):

Nothing in this rule shall further limit the practice of law by partners or associates of a part-time judge in any court to which such part-time judge is temporarily assigned to serve pursuant to Section 106(2) of the Uniform Justice Court Act or Section 107 of the Uniform City Court Act in front of another judge serving that court before whom the partners or associates are permitted to appear absent such temporary assignment.

         Before the adoption of Rule 100.6(B)(5), the Rules Governing Judicial Conduct clearly prohibited a part-time lawyer judge, as well as his/her partners and associates, from appearing in the court in which the part-time lawyer judge presides, even if the part-time lawyer judge was assigned temporarily and sat only on a limited or as-needed basis (see 22 NYCRR 100.6[B][3]; Opinion 09-135; Joint Opinion 08-220/08-222; Opinion 08-144).

         Under the new rule, the Committee concludes that, as long as the inquiring judge is temporarily assigned to serve in the City Court pursuant to Section 107 of the Uniform City Court Act, the inquiring judge’s partners and associates may continue to appear before all other judges of the City Court, unless there is a reason other than their colleague’s temporary assignment to the City Court which would preclude them from doing so (see 22 NYCRR 100.6[B][5]).

         Opinion 09-149 is overruled to the extent it is inconsistent with Rule 100.6(B)(5) and this opinion.

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¹The Committee assumes that an “acting City Court judge” is a judge who is temporarily assigned to sit in City Court and notes that a temporary assignment may be effective for a particular term (e.g., one year), but the judge may sit only on an “as needed” basis or periodically, such as once or twice per week or once per month.