Opinion 12-182

December 13, 2012

Digest:         A part-time judge presiding in a municipality may not consent to his/her law firm’s proposed representation of claimants in an Article 78 proceeding against the municipality, where the outcome of the proceeding would directly affect the municipality’s court facilities, particularly if the judge would share equally in the earned legal fee.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(G); 100.6(B)(1)-(2); 100.6(B)(3); 100.6(B)(4); Opinions 11-150; 10-94; 08-87; 99-23 (Vol. XVII); 98-153 (Vol. XVII); 96-131 (Vol. XV); 94-29 (Vol. XII); 89-85 (Vol. IV); 89-59 (Vol. IV); Joint Opinions 08-210/09-01; 89-44/89-60 (Vol. V).

Opinion:

         The inquiring part-time judge is a principal of a professional limited liability company (PLLC) law firm, who “share[s] equally from the profits of the firm” with his/her fellow principals, “without segregation or differentiation of the origin of the funds that come into our common fund.” The judge states that certain potential clients are considering hiring the firm “to represent claimants in an Article 78 proceeding against the [municipality] in which” the judge sits. The judge also explains that the case concerns the municipality’s possible real estate purchase for new municipal offices, including new court facilities. The judge says he/she would not be involved personally in the representation, and the firm and its attorneys do not currently represent the municipality or any of its boards or agencies. Under these facts, the judge asks if his/her firm may represent a person in an adversarial position to the municipality in the proposed Article 78 proceeding, and, if so, whether the judge may share in the attorneys’ 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]). Unlike full-time judges, part-time judges and justices who are lawyers are permitted to practice law (see 22 NYCRR 100.4[G]; 100.6[B][1]-[2]) and may accept private employment which is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties (see 22 NYCRR 100.6[B][4]). However, such outside employment or legal practice is subject to limitation, because a judge’s judicial duties “take precedence over all the judge’s other activities” (see 22 NYCRR 100.3[A]; see also, e.g., 22 NYCRR 100.6[B][3] [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”]).

         Clearly, the inquiring judge could not personally represent someone against the municipality where he/she presides (see, e.g., Opinions 99-23 [Vol. XVII] [a town justice may not represent a client in a property tax assessment reduction proceeding brought against the town]; 94-29 [Vol. XII] [a town justice may not represent private clients in certiorari proceedings against the town]; Opinion 89-85 [Vol. IV] [a town justice may not represent a party in its real estate negotiations with the town 89-59 [Vol. IV] [representation by a town justice who is a lawyer of a landowner-client in the sale of land to the town would create an appearance of impropriety].

         On the other hand, the Committee has previously advised that, in tribunals where the judge does not preside, a part-time judge’s associates “are generally free to appear” on behalf of the judge’s law firm and the judge’s own clients, even if the judge may not personally appear (Opinion 11-150; see Opinions 10-94; 08-87; see also Joint Opinion 08-210/09-01).¹ Thus, for example, although a town justice may not represent a private client before the town’s zoning board of appeals, the Committee has consistently advised that the judge’s partners or associates may represent such clients (see Joint Opinion 89-44/89-60 [Vol. V]; accord, e.g., Opinion 10-94).

         However, this general principle is not without limitation. For example, the Committee has previously advised that a part-time judge may not remain a partner or associate of a law firm if another member of the firm represents the local sheriff’s department union whose members are directly involved in most of the vehicle and traffic and criminal matters heard in the judge’s court (see Opinions 98-153 [Vol. XVII]; 96-131 [Vol. XV]). In Opinion 96-131 (Vol. XV), the Committee expressly rejected the proposed “distinguishing factor ... that it is the inquiring judge’s law partner, rather than the judge personally, who is planning to represent the sheriff’s union.” Rather, the Committee emphasized that there would be an appearance of partiality “if the judge were to preside in a court where matters involving the sheriff’s department predominate, while in partnership with or as an associate of the attorney for the sheriff’s union” (id.).

         Similarly, the proposed representation by the judge’s law firm against the municipality where the judge presides also would create an appearance of impropriety.

         While the law firm’s priority must be the client’s interest in opposing the municipality’s decision to purchase property to be used for municipal offices, including a court facility, the judge’s priority must be that which best promotes the administration of justice. Because these interests may very well conflict, the judge’s association with the law firm in these circumstances would create an appearance of impropriety. And, here, that appearance would be exacerbated as the judge would share equally in the fee earned for representing the client. Therefore, the judge may not consent to the representation, and should so advise his/her partners and/or associates in writing (see Opinions 98-153 [Vol. XVII]; 96-131 [Vol. XV]).

         In Opinion 96-131 (Vol. XV), the Committee advised that a part-time judge may not remain a member of a law firm if another member of the firm represents the local sheriff’s department union whose members are directly involved in most of the vehicle and traffic and criminal matters heard in the judge’s court. In the present inquiry, the representation involves a single issue in an isolated case, as opposed to representation of an organization in a wide-range of cases on an on-going basis. Therefore, should the inquiring judge’s partners and/or associates accept the case against the municipality in which the judge presides despite the judge’s objection, the judge may remain with the firm, but may not share in any fees the law firm earns as a result of the representation. Rather, the law firm should segregate the fees and distribute them amongst anyone in the firm entitled to a share, except the inquiring judge, and insulate the judge from all involvement in the case.

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     ¹ The Committee has also advised that “this result does not depend on whether the inquiring judge’s law firm is legally organized as a professional limited liability company,” because the Rules Governing Judicial Conduct do not mention the legal forms in which a law practice may be organized, “[n]or has the inquirer identified any aspect of the professional limited liability company form that would warrant a different analysis or result” (Opinion 11-150).