Opinion 18-137

October 18, 2018

Digest:         A part-time judge may represent a judge who presides in a different court before the Commission on Judicial Conduct.

Rules:          Judiciary Law §§ 16; 212(2)(l); 471; 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(D)(1); 100.6(B)(2); 100.6(B)(4); Opinions 18-74; 17-164; 16-13; 14-162(A); 12-173; 09-49; 00-46.

Opinion:

         A part-time attorney judge asks if he/she may represent a full-time judge in a proceeding before the Commission on Judicial Conduct. To avoid even the appearance of impropriety, after their initial consultation, the full-time judge issued an order recusing from all matters involving the inquiring judge and his/her law firm.

         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 limitations. For example, the judge must not practice law in “the court on which the judge serves” (22 NYCRR 100.6[B][2]), 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” (id.). He/she also must not act as a lawyer “in a proceeding in which the judge has served as a judge or in any other proceeding related thereto” (id.; see also Judiciary Law § 16 [judge must not “practice or act as an attorney or counsellor … in an action, claim, matter, motion or proceeding originating in” a “court of which [the judge] is, or is entitled to act as a member”]). More generally, a part-time judge’s extra-judicial employment must not be incompatible with judicial office or conflict or interfere with the proper performance of judicial duties (see 22 NYCRR 100.6[B][4]).

         In Opinion 00-46, we advised that a part-time city court judge who practices law may represent a town justice on a complaint pending before the Commission on Judicial Conduct. In a terse opinion, we said the proposed representation did not run afoul of the Part 100 restrictions on a part-time judge’s law practice or the Committee’s prior opinions and found “no impropriety or appearance of impropriety in the legal representation envisioned” (id.). We expressly noted there was no need to reach the question of “[w]hether our answer would be the same if the two judges were judges of the same court” (id.).

         We continue to believe it is permissible for a part-time judge to represent a judge who presides in another court before the Commission on Judicial Conduct, where the representation is not before “a court” and thus is not prohibited by 22 NYCRR 100.6(B)(2), the representation does not appear to be inherently incompatible with judicial office or conflict or interfere with the proper performance of judicial duties (see 22 NYCRR 100.6[B][4]), and the matter clearly did not originate in the inquiring judge’s court (see e.g. Opinions 16-13; 12-173; Judiciary Law §§ 16; 471; cf. 22 NYCRR 100.6[B][2]).

         We nonetheless wish to add a cautionary note for judges who are contemplating such representations.

         Specifically, if a part-time judge represents another judge before the Commission on Judicial Conduct, he/she will likely become privy to client confidences concerning the other judge’s alleged violations of the Rules Governing Judicial Conduct. Indeed, it is possible the part-time judge will receive information indicating a “substantial likelihood” that his/her client has committed a “substantial violation” of the Rules, which would require the part-time judge to take “appropriate action” (see 22 NYCRR 100.3[D][1]).

         Ordinarily, even when this two-prong test is met, the exact nature of the action that is appropriate under the circumstances is left entirely to the part-time judge’s discretion, and he/she may well decide to discharge his/her ethical responsibilities by appropriately counseling his/her client (see e.g. Opinion 18-74). Moreover, as long as the client confidences relate solely to matters already before the Commission, the part-time judge need not take any action whatsoever under Section 100.3(D)(1) (see e.g. Opinions 14-162[A]; 09-49).

         However, in an extreme case, the part-time judge may conclude that the confidences revealed seriously call into question the client’s fitness to continue in office. When this standard is met, we have said the only appropriate action is to report the other judge to the Commission on Judicial Conduct – unless the judge knows the matter has already been reported (compare e.g. Opinion 17-164 with Opinions 14-162[A]; 09-49). Thus, if the two-prong test is met, and the part-time judge further concludes his/her client’s confidences seriously call into question the client’s fitness as a judge, there will still be no conflict for the part-time judge as long as the client confidences relate to a matter that has already been reported to, or is already under investigation by, the Commission on Judicial Conduct.

         But if the two-prong test is met, and the part-time judge further concludes his/her client’s confidences seriously call into question the client’s fitness as a judge, and these confidences relate to a matter that has never been reported to the Commission on Judicial Conduct, then the part-time judge may have a conflict between his/her obligations as an attorney to maintain client confidences and his/her disciplinary obligations as a judge. Should this particular conflict arise, we believe the judge should withdraw from the representation (see 22 NYCRR 100.3[A] [a judge’s judicial duties take precedence over all his/her other activities]; 100.6[B][4] [part-time judge’s extra-judicial employment must not conflict or interfere with the proper performance of judicial duties]). We further note that the question of how to resolve these conflicting professional obligations, should they arise, would raise legal questions beyond our authority to address (see Judiciary Law § 212[2][l]).