Opinion 13-167

December 12, 2013

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 lawyer judge may refer potential clients to his/her tenant, who is also an attorney, subject to certain limitations.

Rules:          Judiciary Law §§ 16; 212(2)(l); 471; 22 NYCRR 100.2; 100.2(A); 100.4(G); 100.6(B)(1)-(3); 22 NYCRR 101.1; 22 NYCRR part 1200, Rules 1.5(g)-(h); 1.18; 7.2(a)(2); Opinions 12-179; 12-173; 12-08; 11-23; 06-63; 03-105; 97-60 (Vol. XV); 93-89 (Vol. XI).

Opinion:

         The inquiring part-time lawyer judge sublets an empty office within his/her law office suite to another attorney, for which the judge charges “rent representing one-half of the office expenses.” The judge and attorney “share common areas in the office,” but “maintain separate and distinct law practices,” with separate phone lines and secretaries. Although the judge and attorney share a fax number, the judge advises that there is no common fax header. The judge asks whether he/she may refer cases that the judge cannot personally handle to the tenant attorney, pursuant to the following proposed arrangement:

Any inquiry for legal services at my office or elsewhere, but not at [my court], for service in any court that I am precluded from practicing law, I propose to refer that case(s) to the attorney sub-letting space from myself. This attorney would provide all legal services to the client(s). There would be no fee sharing between myself and this attorney. This attorney would not appear in [my court] before myself or the other [judge(s)]. This attorney would continue to pay myself rent representing one-half of the office expenses. Finally, my secretary would have some role in preparing and shepherding these files from beginning to end.

         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]). Although a full-time judge may not practice law, a part-time judge who is an attorney may do so, subject to certain limitations (see 22 NYCRR 100.4[G]; 100.6[B][1]). Among other restrictions, a part-time lawyer judge may not practice law in the court on which the judge serves and also may not permit his/her partners or associates to do so (see 22 NYCRR 100.6[B][2]-[3]; Judiciary Law §§ 16, 471). The judge also may not practice law in other courts of the county, in which his/her court is located, before a judge who is permitted to practice law (see 22 NYCRR 100.6[B][2]).

         Attorneys routinely refer prospective clients to other attorneys whenever conflicts, workload, or the nature of their practice preclude the representation (see e.g. Opinion 06-63 [referral of existing client to another attorney for a matter beyond the scope of the judge’s law practice]). Indeed, an attorney who is consulted in his/her professional capacity might conclude that making a referral to a specific attorney is warranted as a matter of courtesy or professionalism, or even to protect the legal interests of individuals who have consulted the attorney, in matters he/she cannot personally handle (see e.g. 22 NYCRR part 1200, Rule 1.18 [duties to prospective clients]).¹

         The Committee has advised that a judge may not preside in matters where the judge referred the litigants to the attorney representing them (see Opinions 11-23; 97-60 [Vol. XV]; 93-89 [Vol. XI]), and a judge may not receive any fee for “referred cases which originated in the judge’s court” (Opinion 97-60 [Vol. XV]; see generally Opinions 12-173; 03-105; Judiciary Law §§ 16; 471). Where a lawyer judge anticipates receiving fees as the result of a referral, the Committee has also advised that the judge is disqualified from all matters involving the law firm to which the judge made the referral “during the representation and for two years after the representation ends” (Opinion 12-179; see also Opinions 12-08; 06-63).²

         The Committee concludes that the proposed referral arrangement is permissible; indeed, the fact that the attorney will not appear in the judge’s court should help minimize the need for disqualification. However, in the event a case the judge has referred to the attorney eventually comes before the judge, the judge must disqualify him/herself from the matter³ (see Opinions 11-23; 97-60 [Vol. XV]; 93-89 [Vol. XI]; cf. Opinion 12-179 [advising that, after renouncing any remaining financial interest in certain referred cases, the judge “is not required to disqualify him/herself when the law firm appears in other, unrelated cases”] [emphasis added]).

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     ¹ By contrast, when a friend or acquaintance asks a judge to recommend an attorney, the Committee has “suggest[ed]” that the judge “should consider” either directing the individual to a bar association’s attorney referral service or providing the names of at least three attorneys for consideration (see Opinions 11-23; 97-60 [Vol. XV]). This suggestion is intended to “reduce any possible risk of public criticism or even potential ill will on the part of individual attorneys who might wish the judge to recommend their services” (Opinion 11-23), an issue which is unlikely to arise in the context discussed here.

     ² The Rules of Professional Conduct set certain limitations on a lawyer’s ability to pay for referrals (see e.g. 22 NYCRR part 1200, Rules 1.5[g]-[h]; 7.2[a][2]), which the Committee cannot address (see Judiciary Law § 212[2][l]; 22 NYCRR 101.1).

     ³ The judge is disqualified subject to remittal unless a party is self-represented or the matter is before the court ex parte (see Opinion 12-179).