Opinion 11-89
September 15, 2011
Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).
Digest: A part-time judge who rents office space within the judge’s private law
office suite to another attorney and shares a fax line and high-speed
copier with the attorney, where there is no indication that they are in
any way associated in the private practice of law, need not prohibit
his/her tenant from using his/her fax line or from appearing before
other judges of the inquiring judge’s court, but is disqualified, subject
to remittal, when the tenant/attorney appears before the judge.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100(F); 100.4(D)(1)(a)-(c); 100.6(B)(1); 100.6(B)(3); Opinions 10-162; 09-233; 09-100; Joint Opinion 09-65/09-67; Opinion 97-60 (Vol. XV); Joint Opinion 94-93/94-107 (Vol. XII); Judiciary Law §471.
Opinion:
A part-time judge who practices law states that he/she rents office space within his/her private law office suite to a local attorney (tenant). The tenant’s name is not on the door of the suite, and the tenant’s secretary works inside the tenant’s separate office, whereas the judge’s secretary works in the common area of the office suite. The judge and tenant maintain their own separate copiers, printers, computers, internet access and phone numbers in their separate offices, except for a single fax line and a high-speed copier in the common area, which they both use. The judge notes that they each use their own individualized cover sheets for the fax machine “so therefore, there is no indication that we have any type of association.”1 The judge further advises that the transmitted document also does not bear any markings that would lead the recipient to conclude that the judge and the tenant are associated in the practice of law. The judge asks whether the tenant must “discontinue ... use of my fax line and high speed copier” in order to practice in the judge’s court.
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 who is an attorney is permitted to practice law but must not permit his/her partners or associates to practice law in the court where he/she presides, even before other judges of the court (see Judiciary Law §471; 22 NYCRR 100.6[B][1]; 100.6[B][3]). In addition, judges are prohibited from engaging in financial and business dealings that may reasonably be perceived to exploit their judicial positions; that may involve them with any business, organization or activity that ordinarily will come before them; or that may involve them in frequent transactions or continuing business relationships with lawyers or other persons likely to come before the court on which they serve (see 22 NYCRR 100.4[D][1][a]-[c]).
The Committee previously has advised that a judge who is a landlord must disqualify him/herself when the judge’s attorney/tenant appears in the judge’s court (see Opinions 10-162; 09-100; see also 22 NYCRR 100.3[E][1]). However, such disqualification is subject to remittal unless a party appears without counsel (see Opinions 10-162; 09-100; see also 22 NYCRR 100.3[F]).
Furthermore, if the inquiring judge’s tenant is the judge’s law office associate then the judge cannot permit the tenant to appear in the court where the judge presides, even before another judge of the court (see 22 NYCRR 100.6[B][3]). Although the Committee has construed the term “associate” in Section 100.6(B)(3) more broadly than the traditional notion of a law firm associate (see e.g. Opinion 10-162), the relationship must be more than a mere landlord-tenant relationship (see Opinion 09-100). For example, the Committee has advised that, where an attorney and judge share office space and secretarial services, there is “an inference of association that invokes the prohibition” (Joint Opinion 94-93/94-107 [Vol. XII]).
In Opinion 09-233, the Committee advised that a part-time lawyer-judge who owns a building and rents space to four other businesses, including two attorneys, may not permit the attorneys to appear before any judge in the judge’s court because the attorneys are the judge’s tenants and they share a fax machine and fax number with the judge. In Joint Opinion 09-65/09-67 (to the extent not overruled by Opinion 09-100), the Committee advised that a part-time judge who sublets shared office space from another attorney and shares a fax machine and copier with the attorney/landlord may not permit the attorney/landlord to appear in his/her court, since the relationship between the judge and the attorney was more than a mere tenancy. And, in Opinion 97-60 (Vol. XV), where “the letterheads of the attorney and [a judge] include[d] the same fax number” and the attorney rented space in a building the judge owned, the Committee advised that there was at least an appearance of association that would invoke the prohibition in Section 100.6(B)(3).
Here, however, the inquiring part-time judge has specifically stated that, although the judge permits his/her tenant to use a fax machine and high-speed copier in the common area, “[the attorney] and I use our own cover sheets when we use the fax so therefore, there is no indication that we have any type of association.” The judge also advises that the transmitted documents do not bear any markings that would lead the recipient to conclude that the judge and the tenant are associated in the private practice of law. In Opinion 09-233, Joint Opinion 09-65/09-67, and Opinion 97-60 (Vol. XV), the inquiring judges provided no such assurance that their fax transmissions were devoid of any indicia of an association. Therefore, there was a risk of a public perception that the judges and attorneys involved were associated in their private law practices.
In light of the inquiring judge’s assurance that “there is no indication of any type of association” with the attorney as a result of the shared fax line, fax machine and high-speed copier, the Committee concludes that the risk of a public perception that the judge and attorney are associated in their private law practices is minimal and that the landlord/tenant relationship here is, in fact, a mere tenancy which does not trigger the restrictions of Section 100.6(B)(3) (see Opinion 09-100). Thus, under the circumstances presented, the inquiring judge need not prohibit his/her tenant from using his/her fax line or from appearing before other judges of the inquiring judge’s court.
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1Although the judge states that the use of fax machines “has diminished significantly because almost everyone is using email,” it is clear from the inquiry that the judge continues to maintain a fax machine and to share it with the attorney.