Opinion 18-153

October 18, 2018

Digest:         A part-time lawyer judge may not represent a private client before the board of assessment review in the same town where the judge presides, but the judge’s partners or associates may undertake the representation provided there is no other ethical impediment and the judge neither participates in the representation nor shares in the fee.

Rules:          Judiciary Law § 471; 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(A); 100.4(A)(1)-(3); 100.4(G); 100.6(B)(1)-(4); Opinions 12-182; 10-94; 08-46; 99-23; 98-94; 96-29; 94-32; 90-59/90-65; 89-44/89-60.

Opinion:

         A part-time town judge who is also a practicing attorney asks if he/she may represent a private client in an administrative proceeding before a board of assessment review within the town where the judge presides. Alternatively, the judge asks if his/her law partners or associates may undertake the representation.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]). A judge’s judicial duties take precedence over the judge’s other activities (see 22 NYCRR 100.3[A]), and thus any extra-judicial activities must be compatible with judicial office and not “cast reasonable doubt on the judge’s capacity to act impartially as a judge” or “interfere with the proper performance of judicial duties” (22 NYCRR 100.4[A][1]-[3]). A part-time judge may nonetheless accept private employment “provided that such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties” (22 NYCRR 100.6[B][4]) and may practice law, subject to certain restrictions (see 22 NYCRR 100.4[G]; 100.6[B][1]-[3]). Among other limitations, a part-time lawyer judge may not permit his/her partners or associates to practice before any judge of the court in which he/she serves (see 22 NYCRR 100.6[B][3]; see also Judiciary Law § 471 [“A law partner of, or a person connected in law business with a judge, shall not practice or act as an attorney or counselor, … in a cause originating in that court”]).

         The first question is whether a part-time attorney judge may represent a private client before the assessment review board of the town in which the judge’s court is located. We have repeatedly advised that part-time attorney judges must not represent private clients before administrative boards of the municipality in which they preside (see Opinions 08-46; 99-23; 98-94; 96-29; 90-59/90-65; 89-44/89-60). We continue to believe such representations are inappropriate for several reasons. First, given the judge’s formal status as a town officer, it could create an appearance of impropriety for the judge to represent a client in a matter where the client’s interests are apparently directly adverse to the town. Second, the representation could easily create a public impression that the judge is lending the prestige of judicial office to his/her client. Third, such representations could undermine the judge’s apparent impartiality and/or result in unnecessary disqualifications. All these considerations apply with equal force to proceedings before the town’s assessment review board. Accordingly, we conclude this judge must not personally represent a private client in such proceedings.

         The second question is whether the judge’s private law firm associates or partners may undertake the representation, even though the judge cannot. We have said a part-time town or village justice’s law partners or associates may represent private clients before the town’s zoning board of appeals (see Opinions 10-94; 89-44/89-60) or the village board and village planning board (see Opinion 94-32). Here, too, absent other disqualifying factors, we conclude the town justice’s partners and associates may represent clients before the town’s assessment review board.

         Finally, we consider whether the part-time attorney judge may share in the fees for the representation undertaken by his/her partners or associates. We first addressed this issue in Opinion 94-32. There, we said the judge’s law firm could represent a client before the village board and planning board and, if necessary, in the Supreme Court challenging the village code. We said “there is no bar to the law firm” undertaking the proposed representation, provided the judge takes no part in it (Opinion 94-32). As we explained (id.):

Such impermissible participation would include, among other things, the rendering of advice and participation in consultations. Nor may the judge share in the fee paid by the client. Participation in such representation and the sharing of fees would, in the opinion of the Committee, create an appearance of impropriety….

         By contrast, in Opinion 10-94, even though the inquiring town justice proposed that his/her associate would “retain[] the entire fee” from representing clients before the town’s zoning board and other administrative bodies, we stated that the judge’s associate may undertake the representation “regardless of whether he/she retains the entire fee earned or shares it with the judge” (id.). However, we provided no analysis or explanation for this conclusion, nor did we distinguish Opinion 94-32.

         On the question of sharing fees, we find the reasoning of Opinion 94-32 more persuasive than the mere dicta of Opinion 10-94. Notably, the representation will not take place elsewhere in the same county, but actually within the same town where the judge presides, before an administrative board of that town. Accordingly, we conclude that the judge may permit his/her partners or associates to represent a client before the town’s board of assessment review, but must not participate in the representation nor accept a fee from the representation (cf. Opinion 12-182 [“the law firm should segregate the fees and distribute them amongst anyone in the firm entitled to a share, except the inquiring judge, and insulate the judge from all involvement in the case”]).