Opinion 16-13

January 28, 2016

Digest:         A newly appointed part-time attorney judge may not continue to represent a client on cases which not only originated in the judge’s court, but were previously handled by the inquiring judge’s predecessor on that court, and were transferred to another local court only after the inquiring judge assumed the bench.

Rules:          Judiciary Law § 16; 22 NYCRR 100.2(A); Opinions 03-105; 93-57; Matter of Sack, 1995 Ann Rep of NY Commn on Jud Conduct, at 130.

Opinion:

         Before his/her part-time judicial appointment, the inquiring attorney judge was representing a client in two civil cases in a local court. An Acting Judge of that court was handling both cases. Now, the inquiring judge has been appointed Acting Judge of that court, replacing the judge who had been handling the inquirer’s cases. The inquiring judge and other judge(s) of that court promptly disqualified themselves from these two cases once the inquirer was appointed to his/her judicial position, and the cases are currently “awaiting reassignment to another court.” The inquiring judge asks whether he/she may continue to represent this client on the two cases that originated in the judge’s court before he/she became a judge, once they are transferred to another local court.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must respect and comply with the law, and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, the Committee has previously considered Judiciary Law § 16, which provides: “A judge shall not practice or act as an attorney or counselor in a court of which he is, or is entitled to act as a member, or in an action, claim, matter, motion or proceeding originating in that court.” Of particular note, in Opinion 03-105, the Committee advised that town judges who are both partners in the same law firm may not represent an existing client of the firm in a matter originating in the judges’ court, even though they promptly recused themselves when they received the charges without taking any judicial action. The Committee explained, “[n]otwithstanding the absence of judicial action other than disqualification and forwarding the matter to the County Court, the proceeding did originate in the judges’ court” (Opinion 03-105). Thus, the judges could not represent the client in that case, even after the transfer to another court (id.; see also Matter of Sack, 1995 Ann Rep of NY Commn on Jud Conduct, at 130). Here, too, the Committee concludes it would, at least, create an improper appearance if this judge were to represent his/her client on cases which not only originated in the judge’s court, but were previously handled by the inquiring judge’s predecessor on that court, and were transferred to another local court only after the inquiring judge assumed the bench (see Opinion 03-105; 22 NYCRR 100.2; 100.2[A]; see also Judiciary Law § 16; Matter of Sack, 1995 Ann Rep of NY Commn on Jud Conduct, at 130).

         The inquiring judge references 93-57 which is readily distinguishable, as it involves a case that had been transferred to another court, for entirely unrelated reasons, before the attorney ever assumed the bench. Indeed, the Committee explained “none of the matters being handled by the inquiring justice were within the jurisdiction of his court while he was a member of that court, all the matters having been transferred to other jurisdictions by the other town justice prior to the inquiring justice’s becoming a member of the courts” (Opinion 93-57). Accordingly, it does not change the result here.