Opinion 10-193

December 9, 2010

Digest:         (1) A full-time judge may not take an active role in the management or operation of any real property that he/she co-owns as a tenant-in-common with a person who is not a member of his/her family and may not appear in court on matters relating to such property to the extent that he/she would be representing not only his/her own interest, but also that of his/her tenant-in-common. (2) A full-time judge may manage real estate as the sole member of the limited liability corporation that owns the property. To the extent legally permitted, the judge may appear pro se on behalf of the limited liability corporation unless the corporation is required by law to appear by or through counsel.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(D)(1)(a)-(c); 100.4(D)(2); 100.4(D)(3)(b); 100.4(G); Opinions 09-12; 04-02; 95-101 (Vol. XIII); 90-101 (Vol. VI); 89-108 (Vol. IV).

Opinion: 

         The inquirer asks whether, upon assuming full-time judicial office, he/she may continue to manage and collect rents on certain rental properties and appear pro se in court on behalf of such properties. The inquirer states that he/she co-owns some rental property as tenant-in-common with a friend and also is the sole member of a limited liability corporation (LLC) that owns other rental property.

         A judge must avoid impropriety and its appearance in all the judge’s activities (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, a judge may not engage in financial or business dealings that may reasonably be perceived to exploit the judge’s judicial position, involve the judge with any business, organization or activity that ordinarily will come before the judge, or involve the judge in frequent transactions or continuing business relationships with persons likely to come before the court on which the judge serves (see 22 NYCRR 100.4[D][1][a]-[c]). Nevertheless, subject to certain limitations, a judge may hold and manage the judge’s and the judge’s family’s investments, including real estate (see 22 NYCRR 100.4[D][2]) and may manage and participate in a business entity engaged solely in investment of the judge’s or the judge’s family’s financial resources (see 22 NYCRR 100.4[D][3][b]). And, while a full-time judge may not practice law, he/she may act pro se (see 22 NYCRR 100.4[G]).

         In the Committee’s view, a judge may co-own rental property as a tenant-in-common or otherwise with a friend who is not a member of his/her family (see Opinions 95-101 [Vol. XIII]; 89-108 [Vol. IV]). However, as a full-time judge, the inquirer may not take an active role in the management or operation of any such real property (see Opinions 04-02; 95-101 [Vol. XIII]; 89-108 [Vol. IV]). Likewise, the inquirer may not appear in court on matters relating to such property, to the extent that he/she would be representing not only his/her own interest, but also that of his/her tenant-in-common (see 22 NYCRR 100.4[G]; Opinions 09-12; 04-02).

         However, as a full-time judge, the inquirer may, as the sole member of a LLC, manage real property the LLC owns (see 22 NYCRR 100.4[D][2]; 100.4[D][3][b]; Opinion 90-101 [Vol. VI]). And, to the extent that the LLC is legally permitted to appear pro se, the inquirer may appear in matters involving the LLC and/or the real estate as he/she will be representing his/her own interests only (see 22 NYCRR 100.4[G]; Opinion 09-12). However, if the LLC is required by law to appear by or through counsel, the inquirer, as a full-time judge, may not represent the LLC as doing so would constitute the practice of law (see 22 NYCRR 100.4[G]).