Opinion 14-82

September 4, 2014

Digest:         A part-time judge may join a law firm, even though two of the judge’s prospective partners or associates also practice law part-time with a second law firm that provides indigent defense services in the same county where the judge presides, provided the attorneys (a) will not practice law in the judge’s court and (b) will not share fees earned for their indigent defense work with the judge’s prospective law firm.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(A); 100.6(B); 100.6(B)(2); 100.6(B)(3); Opinion 14-53.

Opinion:

         A part-time judge asks if he/she may join a law firm, where two firm members also practice with another firm (the defense firm) that provides indigent defense services in the county where the judge presides, including in the judge’s court. He/she states that under the Rules Governing Judicial Conduct, he/she must not permit any of his/her partners and associates to practice law in his/her court, even if they appear on behalf of the defense firm. The judge says the attorneys who practice with both firms know and accept this limitation and advise the inquiring judge they do not share fees they earn from their indigent defense work with the law firm the judge wishes to join.

         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 is allowed to practice law (see 22 NYCRR 100.6[B]) but may not permit his/her partners or associates to do so in the court where he/she sits (see 22 NYCRR 100.6[B][2]).¹ In any event, a judge’s judicial duties must take precedence over all other activities (see 22 NYCRR 100.3[A]).

         If the inquiring judge joins the proposed law firm, it is clear he/she cannot permit any lawyer from the firm to appear in his/her court (see 22 NYCRR 100.6[B][3]; Opinion 14-53). That includes the attorneys who have previously appeared in the judge’s court on behalf of the defense firm. Nor may these attorneys share any fees they earn from their work for the defense firm with the firm the judge proposes to join, as it could create an appearance of impropriety (see 22 NYCRR 100.2).

         Here, it appears the affected attorneys agree to accept the limitations on their practice with the defense firm and will not appear in the judge’s court so long as they continue to practice law with the judge and the judge continues in judicial office. Also, the judge advises that the defense firm and its attorneys do not share fees with the judge’s proposed law firm. Thus, the Rules Governing Judicial Conduct do not prohibit the judge from joining the firm.

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     ¹ The inquiring judge should notify his/her co-judge (if any) that he/she also must not permit the inquiring judge’s partners and associates to practice law before him/her (see 22 NYCRR 100.6[B][3]).