Opinion 11-150

January 26, 2012

Digest:         A part-time judge who is permitted to practice law may not permit an attorney who is “of counsel” to the judge’s professional limited liability company law firm to appear before the judge or any co-judge of the court in which the judge presides but may permit the attorney to appear on behalf of the firm before the full and part-time judges of other courts in which the judge does not preside.

Rules:          Judiciary Law § 212(2)(l); § 471; 22 NYCRR 100.2; 100.2(A); 100.6(B)(1)-(3); 101.1; Opinion 09-48; Joint Opinion 08-210/09-01; Opinion 08-87.

Opinion:

         The inquiring part-time judge, who presides in a multi-judge court, states that he/she also maintains a legal practice organized as a professional limited liability company (PLLC). The judge asks if an attorney who is “of counsel” to the judge’s firm may appear, on that firm’s behalf, in other town and village courts in the same county where the judge’s court is located before judges who are permitted to practice law. The judge explains that the “of counsel” attorney will prepare and sign the papers, make all court appearances, and communicate with the court, but also notes the firm’s name is similar to the judge’s name and the judge would, as a firm owner, “undoubtedly profit from the fees.”

         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]). A part-time judge may practice law, subject to certain limitations (see 22 NYCRR 100.6[B][1]-[2]), but “shall not permit his or her partners or associates to practice law in the court in which he or she is a judge” (22 NYCRR 100.6[B][3]; see also Judiciary Law § 471).

         An attorney who is “of counsel” to the inquiring judge’s law firm “cannot appear before any judge in the court in which the judge presides” (Opinion 08-87; see also 22 NYCRR 100.6[B][3] and Opinion 09-48 [“your partner cannot practice law in your court before either you or your co-judge”]).

         In courts where the judge does not preside, however, the judge’s associates are generally free to appear, even before a judge who is permitted to practice law. In Opinion 08-87, the Committee advised that an attorney who is “of counsel” to the judge’s law practice “is not restricted from practicing law in any other court in the county where the judge’s court is located” (Opinion 08-87; see also 22 NYCRR 100.6[B][3]), both “before a judge who is permitted to practice law and before a judge who is not permitted to practice law” (Joint Opinion 08-210/09-01; see also 22 NYCRR 100.6[B][2]-[3]).

         Moreover, the Committee has advised that “it is ethically permissible for the inquiring judge to have another attorney or a law firm represent the judge’s clients in courts where the judge him/herself cannot appear” (Opinion 08-87). The judge’s associates “may use law office stationery in connection with such appearances as long as it does not disclose the judge’s judicial status” (Joint Opinion 08-210/09-01).

         The Committee believes this result does not depend on whether the inquiring judge’s law firm is legally organized as a professional limited liability company or in another legally permissible form. Section 100.6(B) of the Rules Governing Judicial Conduct refers to the “practice of law” by a part-time judge; it does not mention the legal forms in which a law practice may be organized. Nor has the inquirer identified any aspect of the professional limited liability company form that would warrant a different analysis or result.

         The Committee declines to address the judge’s remaining questions which either raise primarily legal issues or relate to the conduct of third parties (see Judiciary Law §212[2][l]; 22 NYCRR 101.1).