Opinion 10-197

December 9, 2010

Please Note: Although the outcome of the present opinion remains unchanged, two of the authorities discussed (Opinions 99-24 and 90-26) were modified in 2012.  In Opinion 12-143, the Committee advised that an individual subject to the Rules Governing Judicial Conduct may attend criminal proceedings involving his/her 4th degree relative by blood or marriage in any county where such proceedings are pending.

Digest:         (1) A part-time lawyer town/village judge may accompany his/her friend to court appearances relating to the friend’s divorce, but should not draw attention to his/her presence or judicial status. (2) A judge may speak or write as a private citizen about natural gas drilling to the extent that it affects him/her personally, but should not use official stationery or refer to his/her judicial status. (3) Subject to the Rules Governing Judicial Conduct, a part-time lawyer judge may practice law, including addressing issues involving natural gas drilling and hydrofracking.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.6(B)(1), (2), (4); Opinions 10-156; 04-126; 99-24 (Vol. XVII); 90-26 (Vol. V).

Opinion:

         A part-time lawyer town/village judge asks whether he/she may accompany a friend during court proceedings relating to the friend’s divorce. The judge does not indicate the location of the court where the proceedings will be held.

         The judge advises that he/she is not a divorce lawyer and that the friend has retained counsel to represent his/her legal interests. Rather, the judge would accompany his/her friend in court to provide non-legal support.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge must not lend the judicial office’s prestige to advance the judge’s or anyone else’s private interests (see NYCRR 100.2[C]).

         The Committee previously has advised that a judge may sit inconspicuously in the observers’ area of a courtroom along with other court observers to watch his/her attorney/child appear in a court proceeding held in a court outside the county where the judge presides but may not do so in a court within the county where the judge presides (see Opinion 90-26 [Vol. V]). Similarly, the Committee also has advised that a judge may accompany his/her child, who is a party to a small claims proceeding, to the small claims hearing and may sit in the audience to watch the hearing in a court outside the county where the judge sits and where it is not likely that the judge is known (see Opinion 99-24 [Vol. XVII]).

         However, a judge may attend an appellate court proceeding held in the same county where the judge presides to watch his/her child argue an appeal (see Opinion 04-126). The Committee thus concluded that the difference between the roles of trial and appellate court judges, as well as the fact that the appellate court is a multi-judge bench, sufficiently diminish the risk that a judge observing his/her attorney child’s oral appellate argument could be perceived as using the prestige of his/her judicial office to advance the child’s private interest.

         The facts in the present inquiry also warrant permitting the inquiring judge to observe proceedings in the same county where he/she presides. Because the inquirer is a part-time town/village judge, there is no question that he/she presides in a court other than that in which the divorce proceedings will be held. And, the Rules Governing Judicial Conduct (Rules) permit the inquiring judge to practice law before any judge in the county where he/she presides who is not also permitted to practice law (see 22 NYCRR 100.6[B][2]), including the judge who will preside in the inquiring judge’s friend’s divorce proceeding. Therefore, as was the case in Opinion 04-126, it would be unreasonable to assume that the inquiring judge’s purpose for accompanying his/her friend to court is to use the prestige of his/her office to advance the friend’s private interests in the divorce proceeding. Therefore, the inquiring judge may accompany his/her friend to the court appearances relating to the friend’s divorce. However, the judge should not draw attention to his/her presence or judicial status (see Opinion 04-126 [it would be unduly restrictive and unnecessary to preclude a judge from discreetly observing his/her daughter, as an ordinary, lay spectator in the courtroom, while the daughter is arguing an appeal before a multi-judge bench]; Opinion 90-26 [Vol. V] [the Rules do not prohibit a judge from sitting inconspicuously in the observers area of the courtroom along with other court observers, to view his/her daughter’s performance]).

         The judge also asks whether he/she may get involved in the issue of drilling for natural gas and hydrofracking, both as a concerned citizen and as an attorney.

         The Committee has previously advised that if natural gas drilling will affect a Support Magistrate’s property, he/she may speak about it as a private citizen at public hearings and write to elected officials to express his/her opinion on the subject (see Opinion 10-156). However, when writing such letters to public officials or drilling company officers, the Support Magistrate should not use official stationery or refer to his/her quasi-judicial office (see id.). Here, too, the inquiring judge also may speak or write as a private citizen about natural gas drilling or hydrofracking to the extent that it affects him/her personally but also should not use official stationery or refer to his/her judicial status when doing so (see Opinion 10-156; 22 NYCRR 100.2[C]).

         The inquirer has not explained the nature of his/her proposed specific or unusual “involv[ement]” as an attorney. To the extent that the inquirer contemplates representing private clients on legal matters relating to drilling or hydrofracking, a part-time lawyer judge is permitted to engage in the private practice of law (see 22 NYCRR 100.6 [B][1]) and may accept private employment or public employment in a federal, state or municipal department or agency that is not incompatible with judicial office and does not conflict or interfere with the proper performance of his/her judicial duties (see 22 NYCRR 100.6[B][4]). Therefore, the inquiring judge also may engage in the private practice of law, including addressing legal issues for clients involving natural gas drilling and hydrofracking, subject to the Rules. However, as the facts presented do not permit the Committee to anticipate how the inquirer’s involvement as an attorney may impact his/her ability to comply with the Rules (see e.g. Opinion 10-54 [noting that a lawyer judge may not engage in prohibited political activities on behalf of his/her clients]), he/she may contact the Committee in the future to ask any specific questions that may arise.