Joint Opinion 10-73/10-100/10-167

December 9, 2010

Digest:         (1) A part-time lawyer judge may appear before another part-time lawyer who presides in the same county and is not admitted to practice law in New York State but is permitted to practice law in another state. (2) A part-time lawyer judge may appear before another part-time lawyer judge who presides in the same county and is employed full-time by the Unified Court System as a full-time law clerk or a full-time court clerk.

Rules:          22 NYCRR 50.6(a); 50.6(b); 100.2; 100.2(A); 100.2(C); 100.6(B)(1); 100.6(B)(2); Opinion 90-199 (Vol. VII).

Opinion: 

       Three part-time lawyer judges ask similar questions about appearing before other part-time lawyer judges who either cannot practice law or are strictly limited in their ability to practice law.

       In Inquiry 10-73, a part-time lawyer judge asks whether he/she may appear before another part-time lawyer judge who is employed as a full-time law clerk. Similarly, in Inquiry 10-167, a part-time lawyer judge asks whether he/she may appear before another part-time lawyer judge who is employed as a full-time court clerk. In Inquiry 10-100, a part-time lawyer judge asks whether he/she may appear before another part-time lawyer judge who is not admitted to practice law in New York State but is permitted to practice law in another state.

       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]). Therefore a judge cannot convey or permit others to convey the impression that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]). While a part-time lawyer judge is permitted to practice law (see 22 NYCRR 100.6[B][1]), he/she is prohibited from doing so in a court located in the same county where he/she presides before a judge who also is permitted to practice law (see 22 NYCRR 100.6[B][2]).

       In Opinion 90-199, the Committee advised that a part-time judge who is permitted to practice law may appear in another court in the county in which his or her court is located where a judge who is officially registered as retired from the practice of law presides. The Committee noted that the purpose of (former) section 100.5(f), now section 100.6(B)(2), of the Rules Governing Judicial Conduct is to avoid even the perception that judges who also are colleagues in the practice of law might afford each other favorable treatment (see id.). In the Committee’s view, such a perception is not reasonable when a lawyer judge who once practiced law is officially registered as retired. The same analysis applies to Inquiry 10-100 where the part-time judge who is a lawyer is not admitted to practice in New York State. Therefore, the inquiring judge in Inquiry 10-100 may appear before another part-time lawyer judge who is not admitted to practice law in New York State, but is admitted to practice law in another state.

       Inquiries 10-73 and 10-167 involve part-time lawyer judges who also are employed full-time by the Unified Court System (UCS), but are not totally prohibited from practicing law. Lawyers employed full-time by the UCS are prohibited from maintaining an office for the private practice of law, from holding themselves out to be in the private practice of law, or from engaging in the private practice of law (see 22 NYCRR 50.6[a]). However, a lawyer employed full-time by the UCS may, subject to prior approval in each circumstance, engage in the private practice of law as to matters not pending before a court or a governmental agency, in uncontested matters in the Surrogate’s Court, uncontested accountings in the Supreme Court and other ex parte applications not preliminary or incidental to litigated or contested matters (see 22 NYCRR 50.6[b]). Nevertheless, it is the Committee’s view that although lawyers employed by the UCS are permitted to practice law, like the lawyer who is officially retired from the practice of law, any perception that as judges they may afford other part-time lawyer judges who appear before them as private practitioners favorable treatment is unreasonable. Even in the very limited circumstances where such a judge may be permitted to engage in private practice, he/she could never do so in a town or village court (see id.). Therefore, the judges in Inquiries 10-73 and 10-167 may appear before other part-time lawyer judges who preside in the same county and are employed full-time by the UCS.