Opinion 17-86

June 15, 2017

Digest:         A full-time judge may not permit his/her part-time co-judge’s partners and associates to engage in the practice of law before him/her and, thus, may not accept papers for filing which were evidently prepared by the co-judge’s partner.

Rules:          Judiciary Law § 471; 22 NYCRR 100.2; 100.2(A); 100.6(B)(3); Opinions 16-143; 14-80; 09-239; 09-47(A); 08-220/08-222; 06-61; 01-78.

Opinion:

         The inquiring full-time judge presides in a city court, along with a part-time co-judge who maintains a private law practice. The full-time judge received papers for filing in a summary proceeding, which were apparently filed by a pro se litigant. However, several items in the filing bear the name of the co-judge’s law partner and law firm, creating a clear impression that the co-judge’s law partner prepared the papers.¹ Although the co-judge’s law partner has not personally appeared before the court, the inquiring judge is concerned that the partner’s clear connections with the case could “easily create a negative impression about the objectivity of the court” in the proceeding. The judge asks if he/she may nonetheless accept these papers for filing, and thereafter preside in the summary judgment proceeding, provided the co-judge’s partners and/or associates do not personally appear.

         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 who is permitted to practice law must not permit his/her partners or associates to practice law in the court where he/she presides and also must not permit the practice of law in his/her court by the partners or associates of another judge of the same court (see 22 NYCRR 100.6[B][3]).² In addition, “[a] law partner of, or person connected in law business with a judge, shall not practice or act as an attorney or counselor, in a court, of which the judge is, or is entitled to act as a member, or in a cause originating in that court” (Judiciary Law § 471; accord Opinion 09-47[A]).

         Applying these principles, the Committee has advised that a judge must not permit the partners or associates of his/her part-time lawyer co-judge to engage in the practice of law before him/her (see Opinions 08-220/08-222; 06-61).

         As the Committee has previously observed, “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). Thus, it includes actions taken on behalf of firm clients or litigants who will appear pro se, without any in-person appearance by counsel (cf. Opinions 16-143; 14-80). Here, the judge has received documents for filing which display the name of his/her co-judge’s law firm and law partner. These documents, on their face, clearly suggest the co-judge’s partner was directly involved in preparing the litigant’s submissions. These facts, at the very least, will create an appearance of impropriety for this judge to accept the papers for filing and preside in the matter (see Opinion 09-47[A] [noting the “Committee’s concern in situations such as these, is that the attorney’s relationship to a judge of a court can reasonably be perceived as affording that attorney an inappropriate advantage before any judge of that court”]).

         Accordingly, the judge may not accept these summary proceeding papers for filing, nor any other papers evidently prepared by the co-judge’s law firm, partners and/or associates.

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         ¹ For example, the co-judge’s law partner notarized the affidavit of service, and the predicate notice displays the name of the co-judge’s law firm.

         ² Although not critical to the outcome here, the Committee “has construed the term ‘associate’ in Rule 100.6(B)(3) more broadly than the traditional notion of a law firm associate” (Opinion 09-239 [citation omitted]).