Opinion 12-173
December 13, 2012
Digest: (1) A judge’s law firm may not represent a client in a criminal case that originated in the judge’s court, even if the matter is transferred to the Integrated Domestic Violence court. (2) A judge’s law firm may not continue to represent a client in Family Court cases that are intertwined with a criminal case that originated in the judge’s court, once all the intertwined cases are transferred to the Integrated Domestic Violence Court. (3) Although a judge’s associates may not appear before any judge of the judge’s court, they are not barred from practicing in other courts and thus may appear before part-time judges in other courts who are permitted to practice law.
Rules: Judiciary Law §§ 16; 471; 22 NYCRR 100.2; 100.2(A); 100.4(G); 100.6(B)(1)-(5); Opinions 12-77; 11-150; 10-104; 10-94; 09-149; 09-19; 08-210/09-01; 08-163; 07-54; 04-40; 03-105; 01-05 (Vol. XIX); 99-34 (Vol. XVII); 98-82 (Vol. XVII); 92-35 (Vol. IX); 88-131 (Vol. III); 88-108 (Vol. III); 88-50 (Vol. II); Joint Opinion 88-17(a) and 88-25 (Vol. I); Opinion 87-10 (Vol. I).
Opinion:
A part-time town/village judge who practices law asks three questions about the effects of his/her judicial status on his/her law firm associates.
With respect to the first two questions, the judge states that his/her law firm represents a client in Family Court on certain interrelated family matters.1 Recently, the client was arrested for allegedly violating the Family Court’s order of protection, within the geographic boundaries of the judge’s court. The client was arraigned in a neighboring municipality, but the action for criminal contempt is currently pending in the inquiring judge’s court.2 The inquiring judge anticipates that the criminal case and the Family Court matters all will be transferred to the Integrated Domestic Violence (IDV) Court, and asks if his/her law firm may continue to represent the client in the family matters, and also undertake to represent the client in the criminal matter, following such a transfer.
Question 1. May the judge’s law firm continue to represent a current Family Court client in a subsequent criminal case which originated in the judge’s court, if all the matters are transferred to the IDV 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 may practice law, subject to certain limitations on the judge and his/her partners and associates (see 22 NYCRR 100.6[B][1]-[5]).
Ordinarily, a part-time judge and his/her law firm associates may represent a client in Supreme Court or Family Court, or any other court in which all of the judges are full-time judges who may not practice law (see generally Opinions 12-77; 04-40; 92-35 [Vol. IX]; 22 NYCRR 100.4[G]). However, a part-time judge and his/her associates may not represent a client in any case “originating” in the part-time judge’s court, even before a full-time judge (see Judiciary Law §§ 16; 471; Opinions 03-105; 01-05 [Vol. XIX]; 99-34 [Vol. XVII]; 98-82 [Vol. XVII]; 88-50 [Vol. II]; Joint Opinion 88-17[a] and 88-25 [Vol. I]). The Committee has explained that the word “originating,” in this context, “includes any case upon which some court action has been taken, such as filing a case in the court, or the issuance of an appearance ticket” (see Opinion 88-50 [Vol. II]; see also Opinion 03-105 [“Notwithstanding the absence of judicial action other than disqualification and forwarding the matter to County Court, the proceeding did originate in the judge’s court.”]). No further judicial action is required for the prohibition to be invoked, and it is irrelevant whether the judge had any involvement in the matter while it was pending in his/her court (see Opinion 88-50 [Vol. II]; see also Opinion 03-105).
As explained on the Unified Court System’s website, all cases transferred to the IDV Court become Supreme Court cases, so that a single judge can hear the related criminal, family and matrimonial disputes for a single family when domestic violence is an underlying issue. Nonetheless, the cases “do not merge and are handled separately based on the evidence in the case” (see IDV Courts, Overview http://www.nycourts.gov/courts/problem_solving/idv/home.shtml [accessed Apr. 2, 2013].
Thus, IDV Courts “apply to each case the substantive and procedural law that would have applied in the case’s court of origin” (id.), and “[i]ndividual cases are not consolidated but retain their distinct identities” (see IDV Courts, Key Principles http://www.nycourts.gov/courts/problem_solving/idv/key_principles.shtml#Court Calendaring [accessed Apr. 2, 2013]).
Therefore, the inquiring judge’s law firm may not represent its existing client in the new criminal matter, even in the IDV Court, as that case clearly originated in the inquiring judge’s court and retains its distinct identity (see generally Judiciary Law §§ 16; 471; Opinions 03-105; 01-05 [Vol. XIX]; 99-34 [Vol. XVII]; 98-82 [Vol. XVII]; 88-50 [Vol. II]; Joint Opinion 88-17[a] and 88-25 [Vol. I]).
Question 2. May the judge’s law firm continue to represent a current Family Court client in the cases that originated in Family Court, if they are transferred to the IDV Court, if the client retains separate counsel for the criminal charges?
In Opinion 01-05 (Vol. XIX), the Committee considered whether a part-time town court judge could represent a parent in a Family Court custody proceeding when the other parent had filed charges against the judge’s client in the court where the judge presided, and the charges involved allegations and issues that would also be material in the Family Court proceeding. The Committee stated:
While it is true that the Family Court proceeding did not ‘originate’ in the judge’s court, ... the two proceedings are clearly intertwined, and ... what occurs in the criminal proceeding could well affect a disposition in the Family Court proceeding. Indeed, it is difficult to envision a hearing in the Family Court that does not consider the matters being alleged in the town court criminal action
. . .
Thus, the judge, as Family Court advocate, must be concerned with and must deal with the underlying facts of the allegations being made in the town court. In our view, that leads to the conclusion that where the judge will be contesting the allegations that are being made in his/her court, albeit in another venue, a situation is created which is incompatible with the judicial office held by the inquirer. ... It therefore follows, that if a part-time judge may not appear as an attorney in his or her own court...he or she should not be appearing in another court in which related issues involving the same parties are the subject of a related litigation.
(Opinion 01-05 [Vol. XIX]; see also Opinion 99-34 [Vol. XVII] [a part-time lawyer-judge may not represent the owner of real property in a proceeding in the Supreme Court whose purpose is to stay an action originating and pending in the justice’s court]).
The Committee views the facts presented in Opinion 01-05 as substantially similar to those presented here,3 and believes that the same reasoning applies. Accordingly, the inquiring judge’s law firm may not continue to represent a client in Family Court cases that are intertwined with a criminal case that originated in the judge’s court, if the cases from both courts are transferred to the Integrated Domestic Violence Court (see Opinion 01-05 [Vol. XIX]).
The Committee emphasizes that a judge’s firm is not automatically required to discontinue the representation of a current client in every instance when new charges against the client are filed in the judge’s court (see Opinion 08-163 [part-time attorney/judge may represent a client on felony charges in County Court, even though “two unrelated non-felony cases” have been filed against the client in the judge’s court]).
Question 3. Is the judge’s law firm prohibited from appearing before any part-time judge in the same county who is permitted to practice law?
Finally, the inquiring part-time judge asks whether the judge’s associates may appear on behalf of the judge’s law firm in courts in the same county as the judge’s court, before part-time judges who are permitted to practice law. The judge states that the associate is an employee of the firm and does not maintain an independent practice.
The Rules Governing Judicial Conduct provide that a part-time judge:
shall not permit his or her partners or associates to practice law in the court in which he or she is a judge, and shall not permit the practice of law in his or her court by the law partners or associates of another judge of the same court who is permitted to practice law, but may permit the practice of law in his or her court by the partners or associates of a judge of a court in another town, village or city who is permitted to practice law.
(see 22 NYCRR 100.6[B][3]). The clear language of the Rules thus requires the inquiring judge to prohibit his/her law firm associates from practicing law in the judge’s court, and requires the inquiring judge’s co-judges to observe or enforce the same prohibition (see id.). But the inquiring judge is not required to prohibit his/her law firm associates from practicing law in other courts, and the judges of such other courts “may permit” those attorneys to appear before them (see id.).
Accordingly, the Committee has frequently recognized that a judge’s law firm associates may appear in courts where the judge him/herself may not appear, other than the judge’s own court (see Opinions 11-150; 10-104; 10-94; 09-149; 08-210/09-01; 07-54; 88-131 [Vol. III]).
Although Opinion 87-10 (Vol. I) reaches a contrary result, the Committee concludes that this anomalous result has been abrogated by subsequent opinions over the ensuing 25 years (see, e.g., Opinion 11-150) and is inconsistent with the Rules Governing Judicial Conduct (see 22 NYCRR 100.6[B][3]). Paragraph (b) of Opinion 87-10 (Vol. I) is therefore overruled.4
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1 The judge states that he/she is not personally involved in the representation, which is handled by one of the judge’s associates.
2 The inquiring judge would, of course, recuse if the client’s criminal case were assigned to him/her (see, e.g., Opinion 09-19).
3 In the present inquiry, the criminal case would no longer be pending in the inquiring judge’s court following the transfer to Supreme Court (i.e., the IDV Court), but, as previously noted, the action that originated in the judge’s court would retain its distinct identity.
4 Although Opinion 88-108 (Vol. III) correctly advises that a part-time judge’s partners and associates “may practice before judges who are permitted to practice law in another town or village court,” the Committee believes that the Opinion’s efforts to distinguish Opinion 87-10 (Vol. I) may be confusing and should be disregarded in light of the Committee’s present opinion.