Opinion 11-120

October 27, 2011

Digest:         A part-time judge who is permitted to practice law may appear before administrative agencies and boards, state and local legislators and staff, and executive branch officers and staff on behalf of bona fide legal clients, but may not lend the prestige of judicial office to advance his/her own private interests or those of his/her legal clients.

Rules:          22 NYCRR Part 100, Preamble; 100.2; 100.2(A); 100.2(C); 100.4(G); 100.6(B)(1), (2), (4); 101.1; 1200.3.9; Opinions 11-87; 10-54; 08-42; 07-47; 06-32; 05-126; 99-148 (Vol. XVIII); Matter of Lonschein, 50 NY2d 569 (1980).

Opinion:

           A part-time judge who is permitted to practice law attended an education program during which the instructor discussed Matter of Lonschein (50 NY2d 569 [1980]). In Lonschein, the Court of Appeals upheld a decision by the Commission on Judicial Conduct to censure a full-time judge for using the prestige of judicial office to facilitate a close personal friend’s application for a license from the New York City Taxi and Limousine Commission.

         The inquirer advises that as a practicing attorney, he/she appears before or otherwise interacts with various administrative agencies and boards at the state and local levels. According to the judge, the bulk of his/her practice involves handling applications before such agencies and boards but also involves lobbying state and local legislatures and executives on behalf of his/her clients. In the present inquiry, the judge asks several general questions about the applicability of Lonschein.

         Two points bear emphasis before the Committee turns to the inquiries presented here. First, while the Committee cannot address legal questions, the Committee’s jurisdiction clearly includes interpretation of ethics issues under the Rules Governing Judicial Conduct, even when those issues arise in the wake of a Court of Appeals opinion (see 22 NYCRR 101.1; compare Opinion 11-87 with Opinion 99-148 [Vol. XVIII]). Second, the Committee notes that because the inquirer’s questions are general in nature concerning the activities he/she describes, the Committee can only provide general guidance.

         With these points in mind, the inquiry submitted for the Committee’s consideration is as follows:

1. Am I precluded from accepting work on behalf of any client who needs a matter handled before an administrative agency, municipality, legislature, or political representative, and who compensates me for that work?

2. Am I precluded from making inquiries to administrative agencies, municipalities, legislatures or political representatives on behalf of municipal entities where the municipality is not immediately and directly compensating me for the inquiry?

3. Am I precluded from making inquiries to administrative agencies, municipalities, legislatures or political representatives on behalf of friends where the friend is not immediately and directly compensating me for the inquiry?

4. May I lobby State, County, Town and local municipal entities on behalf of private parties or municipalities where I am being compensated for such efforts?

5. May I lobby State, Community, Town and local municipal entities on behalf of private parties or municipalities where I am not being immediately or directly compensated for such efforts?

6. May I accept any such work or make such inquiries where I am not being immediately compensated, but I hope that I will ultimately be compensated on either that particular work or on future work for that client?

7. May I accept any such work or make such inquiries where I am not being compensated for it and have no intent of asking for or accepting compensation for the particular work?

         A judge must 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]). Therefore, a 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]; 100.4[G]) but not in the court where he/she presides or in any other court in the county where the judge’s court is located before a judge who is permitted to practice law (see 22 NYCRR 100.6[B][2]).

         In Lonschein, the Commission disciplined a full-time judge who was not permitted to practice law or to participate in any business enterprise for using the prestige of his judicial office to assist a friend when the judge asked the deputy counsel of the Taxi and Limousine Commission to expedite the friend’s license application. The Commission found, and the Court of Appeals agreed, that the judge “was aware that his judicial position would affect the subsequent conduct of the deputy counsel” (Matter of Lonschein, 50 NY2d at 572) and that “the deputy counsel knew of his position and should have realized that his requests would be accorded greater weight by an administrative official tha[n] they would have been had petitioner not been a Judge” (id. at 573).

         In contrast, the judge in the present inquiry is a part-time judge who is permitted to and does engage in the practice of law (see 22 NYCRR 100.6[B][1]). In that role, he or she legitimately ushers applications through various administrative agencies and boards at the state and local levels, and meets with state and local legislators and staff and executive branch officers and staff, on behalf of his/her clients.¹ The Committee has previously advised that, in certain circumstances, a part-time lawyer judge who is permitted to practice law may, on behalf of a client or otherwise as an attorney, engage in conduct that would not be permissible if the judge were to act on his/her own behalf or on behalf of a friend or other individuals with whom the judge does not maintain an attorney/client relationship (see Opinions 07-47 [part-time lawyer judge prohibited from publicly commenting on pending or impending litigation may nevertheless respond to media inquiries concerning a highly-publicized litigation where the judge represents a party to such litigation]; 06-32 [part-time lawyer judge regarded as an expert on a subject and whose law firm is recognized as a leader with respect to issues involved may appear before a municipal board as a panelist or otherwise publicly discuss political issues or matters of public controversy]).

         In these prior Opinions, the Committee recognized that to absolutely bar a judge who is permitted to practice law from engaging in activities that are necessary to provide the judge/attorney’s clients effective assistance of counsel would create an unwarranted and unnecessary barrier to the lawyer/judge’s professional responsibilities (see Opinion 07-47). Because the Rules Governing Judicial Conduct (Rules) are “rules of reason” (see 22 NYCRR Part 100, Preamble), the Committee has declined to do so.

           Therefore, the inquiring judge may engage in the activities he/she proposes, but only in his/her capacity as an attorney on behalf of one or more individuals with whom he/she maintains a bona fide attorney/client relationship, and so long as such activities are not otherwise prohibited by the Rules, including prohibited political activities (see Opinion 10-54).² In doing so, the judge is prohibited from lending the prestige of judicial office to advance his/her own private interests or that of his/her client (see 22 NYCRR 100.2[C]; Opinions 07-47; 05-126).

         That the inquirer is a part-time judge who is permitted to practice law (see 22 NYCRR 100.6[B][1]) and to accept private employment that is not incompatible with judicial office (see 22 NYCRR 100.6[B][4]) is a factor that serves to distinguish his/her conduct from that of the full-time judge in Lonschein. Because a full-time judge is not permitted to practice law, his/her conduct on behalf of a friend is susceptible to appearing improper at the outset. In contrast, the inquiring judge has stated a legitimate, permissible reason - i.e., the practice of law - for engaging in the activities he/she describes.

         The inquiring judge distinguishes between work performed for a client who compensates the inquirer and a client that “[does] not immediately and directly [compensate]” the inquirer. As previously noted, because the present inquiry is general in nature concerning the activities the inquiring judge describes, the Committee can only provide general guidance. Therefore, the Committee is unable to offer meaningful guidance on ethics issues that might arise with respect to any particular facts involved in a future representation, compensated or not. However, the Committee also notes that whether the inquiring judge is fairly, immediately and/or directly compensated in any particular circumstance could be one of several factors in making the fact-specific legal determination of whether a bona fide attorney/client relationship exists (see e.g. Opinion 08-42).

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     ¹ The inquiring judge uses the term “lobby” to describe the work he/she wishes to undertake. However, as in Opinion 10-54, “the Committee need not determine whether a part-time judge may serve as a ‘lobbyist’ to answer the inquiring judge’s question.”

     ²The Rules of Professional Conduct provide: “A lawyer communicating in a representative capacity with a legislative body or administrative agency in connection with a pending non-adjudicative matter or proceeding shall disclose that the appearance is in a representative capacity, except when the lawyer seeks information from an agency that is available to the public” (22 NYCRR 1200, Rule 3.9).