Opinion 10-54

April 22, 2010

Digest:         A part-time lawyer judge may accept employment with a law firm to appear before the State Legislature, the State Executive Branch, and local governments on behalf of various clients, subject to certain limitations.

Rules:          Legislative Law Art. 1-a, (1-c)(a), (c); 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(8); 100.4(A)(1) - (3); 100.4(C)(1); 100.5(A)(1); 100.5(A)(1)(c); 100.5(A)(1)(g)-(i); 100.6(B)(1), (4); Opinions 06-32; 98-74 (Vol. XVII); 97-33 (Vol. XV); 88-154 (Vol. III); 88-80 (Vol. II).

Opinion:

         The inquiring part-time lawyer-judge asks whether he/she may accept a position with a law firm "as an attorney and/or lobbyist." The judge's duties would include appearing before state and local governmental entities on behalf of clients such as trade organizations, private corporations and educational institutions; preparing legal memoranda on issues and legislation affecting those clients; and advocating on his/her clients’ behalf. The judge states that he/she would not attend political fund-raisers or make political contributions, would not represent any organizations that would be engaged in proceedings that would ordinarily come before the judge's court, and would not appear before local governmental bodies within the same jurisdiction as his/her court.

         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]). Thus, a judge must conduct his/her extra-judicial activities so that they do not cast reasonable doubt on the judge's capacity to act impartially (see 22 NYCRR 100.4[A][1]). A judge also must refrain from engaging in political activity except as expressly permitted by the Rules Governing Judicial Conduct (see 22 NYCRR 100.5[A][1]).

         A part-time judge who is a lawyer may practice law (see 22 NYCRR 100.6[B][1]) and may accept private employment that is not incompatible with judicial office and that does not conflict or interfere with the proper performance of the judge’s duties (see 22 NYCRR 100.6[B][4]).

         While a full-time judge is prohibited from appearing at a public hearing before an executive or legislative body or official except on matters concerning the law, the legal system or the administration of justice (see 22 NYCRR 100.4[C][1]), a part-time judge is not subject to the same prohibition (see id.; 22 NYCRR 100.6[B][1]).

         The inquiring judge used the term “lobbyist”¹ to describe the position that he/she may assume. However, the Committee need not determine whether a part-time judge may serve as a “lobbyist” to answer the inquiring judge’s question. Certainly, a part-time lawyer judge who practices law may prepare legal memoranda on issues and legislation affecting his/her clients (see 22 NYCRR 100.6 [B][1]). In addition, a part-time judge may appear at a public hearing before an executive or legislative body or official (see 22 NYCRR 100.4[C][1]; 100.6[B]) and may meet privately with legislators or members of the executive branch to advocate on his/her clients’ behalf (cf. Opinion 97-33 [Vol. XV]).

         However, as the inquiring judge acknowledges, even on behalf of his/her clients, he/she may not engage in prohibited political activities (see 22 NYCRR 100.5[A][1]). Therefore, the judge may not engage in any partisan political activity (see 22 NYCRR 100.5[A][1][c]); may not attend political gatherings (see 22 NYCRR 100.5[A][1][g]); may not make political contributions (see 22 NYCRR 100.5[A][1][h]); or purchase tickets for politically sponsored dinners or other functions, including any such function for a non-political purpose (see 22 NYCRR 100.5[A][1][i]).

         Finally, while the inquiring judge may engage in the activities he/she describes, the judge must minimize the risk of conflict with his/her judicial obligations (see Opinion 06-32). Therefore, the judge must ensure that his/her law practice activities do not cast doubt on his/her ability to be impartial as a judge, do not detract from the dignity of judicial office, do not interfere with the proper performance of his/her judicial duties and are not incompatible with judicial office [22 NYCRR 100.4(A)(1),(2),(3)]. Also, the judge must not lend the prestige of judicial office to advance his/her private interests or those of his/her clients or law firm (see 22 NYCRR 100.2[C]; cf. Opinion 98-74 [Vol. XVII] [part-time judge may act as a legal advisor to a controversial advocacy organization "as long as an attorney-client relationship exists and the judge's actions are clearly identifiable as those of an attorney representing a client"]). Moreover, the judge must refrain from making any public comment about a pending or impending proceeding in any court within the United States or its territories (see 22 NYCRR 100.3[B][8]).

         In the future, should the inquiring judge wish to engage in any other activities that may be characterized as “lobbying,” he/she should contact the Committee for further guidance.

         This Opinion modifies prior Opinion 88-80 (Vol. II) to the extent that it prohibits judges from engaging in any activities that constitute “lobbying.” Further, because prior Opinion 88-154 (Vol. III) relied on former section 100.4(b) of the Rules Governing Judicial Conduct, which limited both part-time and full-time judges’ ability to appear at public hearings before an executive or legislative body or official only to such hearings that concern the law, the legal system and the administration of justice, it is overruled.

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             ¹The term “lobbyist” is defined in Legislative Law Article 1-A , §1-c(a). The term “lobby” is defined in Legislative Law Article 1-A, §1-c(c).