Opinion 10-162

October 28, 2010

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:         A part-time judge who rents office space to an attorney is disqualified when that attorney appears before the landlord/judge.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(F); 100.4(D)(1)(a)-(c); 100.6(B)(3); Opinions 09-100; 01-07 (XIX); 97-60 (Vol. XV); 97-15 (XV); Joint Opinion 94-93/94-107 (Vol. XII).

Opinion:

         A part-time lawyer judge owns an interest in the building where his/her private law office is located. The judge asks whether an attorney who simply rents an office in this building and shares its common conference room can appear in the court where the judge presides, and whether the judge may give 18b assignments to the attorney to represent indigent criminal defendants. The judge says they would “not share any services.”

         A judge must always avoid even the appearance of impropriety (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]). Therefore, judges are prohibited from engaging in financial and business dealings that may reasonably be perceived to exploit their judicial positions; that may involve them with any business, organization or activity that ordinarily will come before them; or that may involve them in frequent transactions or continuing business relationships with lawyers or other persons likely to come before the court(s) on which they serve (see 22 NYCRR 100.4[D][1][a]-[c]). A judge also may not permit his/her law practice associates to practice in the court where he/she presides (see 22 NYCRR 100.6[B][3]).

         In prior opinions, the Committee has construed the term “associate” in Section 100.6(B)(3) more broadly than the traditional notion of a law firm associate (see e.g. Opinion 09-100 and Opinions cited therein), including sharing office space in some circumstances (see Opinion 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]; Joint Opinion 94-93/94-107 [Vol. XII] [sharing office space and secretarial services “results in an inference of association that invokes the prohibition”]). However, in Opinion 09-100, the Committee concluded that where the landlord/tenant relationship 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. The Committee noted that attorneys who are solo practitioners often enter into such office-sharing arrangements for purely economic reasons and maintain entirely separate law practices and that simply because one attorney who enters into such an arrangement is a part-time judge, the other lawyer’s ability to practice should not be limited by deeming him/her the judge’s “associate” for purposes of Section 100.6(B)(3) (see id.).

         Therefore, the inquiring judge may permit an attorney who rents an office in the judge’s building and shares a common conference room with the judge, but shares no “services,” to appear in the court where the judge presides. However, if the tenant attorney appears before the inquiring judge, the judge must disqualify him/herself (see 22 NYCRR 100.3[E][1]). Such disqualification is subject to remittal (see 22 NYCRR 100.3[F]) unless a party appears without counsel (see Opinion 01-07 [Vol. XIX]).

         Because the inquiring judge is disqualified from presiding over matters involving the attorney, the inquiring judge also should not assign the attorney, who is on the 18B assigned counsel panel, to represent indigent criminal defendants. Doing so could easily create a perception that the judge was allowing his/her business considerations as the landlord to influence his/her judicial conduct (see 22 NYCRR 100.2[B]; Opinion 97-15 [Vol. XV]).