Opinion 16-143

October 20, 2016

Digest:         (1) Where a part-time lawyer judge’s law practice associate is representing a client in another court in the same county before another part-time lawyer judge, the judge may not personally participate in the representation by meeting with the client or discussing the case with opposing counsel, even if such activities will take place away from the courthouse. (2) The judge may nonetheless directly supervise a subordinate attorney who is representing the law practice’s clients in such matters, provided such supervision takes place in private, without involvement of the client, opposing parties or counsel, or the court in which the matter is heard.

Rules:          22 NYCRR 100.2; 100.2(A); 100.6(B)(1)-(5); 100.6(B)(2); 100.6(B)(3); 22 NYCRR pt 1200, Rule 5.1(c); Opinions 14-80; 12-173; 11-150; 08-210/09-01; 08-87; 01-78; 88-131; People v Alfani, 277 NY 334 (1919); NY Jur2d § 42, Attorneys at Law.

Opinion:

         A part-time lawyer judge asks if he/she may be personally involved, outside of court, in a case that his/her law firm associate is handling before another part-time lawyer judge in the same county.¹ Specifically, the judge asks if he/she may (a) “meet the client in the privacy of [his/her] law office,” (b) “have discussions with the prosecutor about the case out of court,” or (c) engage in “other similar activities that affect the case” but which do not involve the judge making appearances in 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 limitation (see 22 NYCRR 100.6[B][1]-[5]). A part-time judge “shall not practice law in the court in which the judge serves, or in any other court in the county in which his or her court is located, before a judge who is permitted to practice law” (22 NYCRR 100.6[B][2]; see Opinion 08-210/09-01). While a judge’s law firm associates may not appear before any judge of the judge’s court, they may appear in other courts before part-time judges who are permitted to practice law (see 22 NYCRR 100.6[B][3]; Opinions 12-173; 11-150; 08-210/09-01; 08-87; 88-131).

         The present inquiry concerns the meaning and contours of Rule 100.6(B)(2)’s phrase “practice law in ... any other court.” In Opinion 14-80, a part-time lawyer judge asked if he/she could provide “behind-the-scenes advice and assistance to a defendant in a criminal case pending in a court in the same county where the judge presides, before another part-time judge who is permitted to practice law.” The judge proposed to contact the defendant’s assigned counsel to obtain information and documents relating to the prosecution, contact the drug treatment facility the defendant was attending to obtain information regarding the defendant’s treatment status, discuss the handling of the case with the defendant’s assigned counsel, and discuss and explain the matter with the defendant and his/her relatives.

         Although the judge in Opinion 14-80 emphasized he/she would not appear in court or contact the judge or prosecutor directly, the Committee found that the judge’s proposed conduct was prohibited by 22 NYCRR100.6(B)(2), because “the advice and assistance the inquiring judge wishes to provide the defendant ... constitutes the practice of law” (Opinion 14-80). As the Committee has advised, “the practice of law is not confined to appearances in court, but includes all actions taken on behalf of clients in matters connected with the law” (Opinion 01-78, relying on People v Alfani, 277 NY 334 [1919]; see also Opinion 93-105 [preparation of witness for testimony before international administrative tribunal “borders upon” the practice of law]). Indeed, it is axiomatic that the “practice of law is not limited to courtroom appearances or court work” (NY Jur2d § 42, Attorneys at Law).

         In the Committee’s view, the proposed out-of-court activities here likewise involve assisting in client representations, and thus constitute the practice of law. Where the client’s case is taking place in a court located within the county where the judge presides, before a part-time lawyer judge, the judge may not engage in the described out-of-court activities (see 22 NYCRR 100.6[B][2]; Opinion 14-80).

         However, the Committee also concludes that 22 NYCRR 100.6(B)(2) does not prohibit this judge from complying with any professional ethical responsibility he/she may have as an attorney to adequately supervise, as appropriate, the work of an associate attorney in his/her employ (see 22 NYCRR pt 1200, Rule 5.1[c]). Accordingly, the judge may directly supervise a subordinate attorney who is representing the law practice’s clients in matters before other part-time lawyer judges in the same county, provided such supervision takes place in private, without involvement of the client, opposing parties or counsel, or the court in which the matter is heard.

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¹ Of course, the judge’s associate does not appear at all in the judge’s court, whether before the judge or his/her co-judge(s).