Opinion 11-108
September 15, 2011
Digest: A judge may not act as a lawyer in a divorce proceeding against a defendant whom the judge previously arraigned on certain alleged sexual crimes that are likely to be raised in the context of a divorce and may not share in any fee resulting from such representation. Under the circumstances presented, in order to prevent the appearance that the judge’s personal knowledge of the defendant resulting from presiding over the arraignment is being used to the advantage of the defendant’s spouse in the divorce proceeding, the judge also should not permit his/her firm to undertake the representation.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(A); 100.6(B)(1), (2); Opinions 11-73; 04-92; 94-88 (Vol. XII); Judiciary Law §17.
Opinion:
A part-time judge who is permitted to practice law states that he/she arraigned a defendant 18 months ago on charges relating to “various sexual crimes.” At the arraignment, “[b]ail was set and posted without the defendant going to jail.” Ultimately, the defendant waived a felony hearing and pleaded guilty to a felony charge in County Court. The defendant’s spouse, who was not the complainant in the prior criminal matter, has recently contacted the inquiring judge for representation in a divorce action against the defendant. The judge asks if the judge, or the judge’s firm, may undertake the proposed representation.
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]). Although a judge’s judicial duties take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]) and the judge must not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]), a part-time lawyer judge is permitted to practice law (see 22 NYCRR 100.6[B][1]). However, the judge is prohibited from acting as a lawyer “in a proceeding in which the judge has served as a judge or in any other proceeding related thereto” (22 NYCRR 100.6[B][2]).
For purposes of Section 100.6(B)(2) of the Rules Governing Judicial Conduct, the Committee has not required a complete identity of parties and subject matter when considering whether a part-time judge’s proposed legal representation in a civil proceeding is “related” to a criminal proceeding over which the judge previously presided. For example, in Opinion 11-73, a part-time lawyer judge asked whether he/she could represent a retired law enforcement officer as a defendant in a federal civil rights claim, based on an incident during which another officer allegedly killed a person in the presence of the judge’s prospective client. Although the inquiring judge never presided over any criminal charges against the prospective client (and in fact, a grand jury had cleared the judge’s prospective client of any criminal wrongdoing), the judge nonetheless had “previously presided over criminal charges brought against other individuals involved in the same incident, beginning with their arraignments and ending with dismissal of the charges” (id. [emphasis added]). The Committee concluded that Section 100.6(B)(2) barred the inquiring judge from representing the law enforcement officer in a federal civil rights claim because it was “related to” certain criminal matters, involving other individuals as defendants, in which the judge had previously presided (see Opinion 11-73).
Similarly, in Opinion 04-92, a part-time lawyer judge asked whether the judge’s law firm may “sue on behalf of a police officer injured in a high speed chase by a driver who, as a result of the incident was arrested on felony charges and was arraigned before [the judge].” Relying on Opinion 94-88 (Vol. XII) and Judiciary Law §17, the Committee advised that “a part-time judge may not participate as an attorney in a civil action which is based upon acts committed by a criminal defendant whose case had been presided over by the judge nor may the judge share in the fee earned by the judge’s law firm in such representation of the plaintiff” (Opinion 04-92).
Opinion 94-88 (Vol. XII), in turn, involved a judge who had presided over a criminal matter involving a defendant who had been arrested on a charge of assault in the third degree. The judge asked the Committee if his/her law firm could represent the victim of the assault in an action “against the owner of the premises where the assault occurred,” rather than the criminal defendant who had appeared before the judge (id.). Under the Rules that were in effect at the time, the Committee advised that “the judge may not personally participate in any way in the action or share in the fee that might be earned by the judge’s law firm in the matter... [because] [t]he two matters involve the same persons (i.e., the victim, and the assailant who appeared before the judge), and are based upon the same underlying events” (id.).1
Here, too, the Committee believes that the proposed representation is “related [to]” the prior criminal matter over which the judge presided within the meaning of Section 100.6(B)(2). The same defendant that the judge previously arraigned would be the respondent in the divorce proceeding, and the previously charged crimes, including the crime to which the defendant pleaded guilty, are likely to be raised in the context of a divorce. The judge therefore may not act as a lawyer in the divorce proceeding, and may not share in any fee resulting from the representation (see id.; see also Opinions 11-73; 04-92; 94-88 [Vol. XII]). Under the circumstances presented, in order to prevent any appearance that the judge’s personal knowledge of the defendant resulting from presiding over the arraignment is being used to the advantage of the defendant’s spouse in the divorce proceeding, the Committee believes that the judge should not permit his/her law firm to undertake the representation (see 22 NYCRR 100.2; 100.2[A]; 100.2[C]; 100.6[B][2]).
__________________________
1Former §100.5(f) of the Rules did not contain the current broad prohibition on undertaking representations “related [to]” proceedings in which the judge served as a judge (see 22 NYCRR 100.6[B][2]), but instead forbade a judge from acting as an attorney “in any matter in which he or she has participated in a judicial capacity” (Opinion 94-88 [Vol. XII], citing former §100.5[f] of the Rules).