Opinion 18-80

May 10, 2018

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         (1) A town justice who has a business and financial relationship with an attorney is disqualified, subject to remittal, in matters involving him/her while the relationship is ongoing and for two years after it completely terminates.

(2) A town justice need not prohibit an attorney from appearing before other judges of the town court, where the judge and the attorney maintain separate law practices and have completely severed the links between them that previously created an appearance that they were associated in the practice of law.

Rules:          Judiciary Law § 471; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); 100.4(D)(1)(c); 100.4(D)(4); 100.6(B)(1); 100.6(B)(3); Opinions 17-160; 17-143; 16-63; 14-194; 10-162.

Opinion:

         Until very recently, the inquiring town justice¹ and the deputy town attorney were both members of a limited liability partnership entity (LLP) that owns the building in which they both practice. The two “shared staff” as well as other overhead expenses such as “insurance, utilities and malpractice insurance.” In addition, when the deputy town attorney performed work for the judge’s law firm, he/she was “paid as a per diem attorney.”² The deputy town attorney has now resigned from the LLP. The judge asks if any ethical conflicts will arise when the deputy town attorney appears before him/her or another judge of the town court.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A part-time attorney judge may practice law (see 22 NYCRR 100.6[B][1]), subject to certain limitations. A judge must not engage in “continuing business relationships with those lawyers ... likely to come before the court on which the judge serves” (22 NYCRR 100.4[D][1][c]), and must disqualify him/herself when the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). A judge also must manage his/her investments and other financial interests to minimize the number of cases in which he/she is disqualified (see 22 NYCRR 100.4[D][4]).

Appearance Before the Inquiring Judge

         A judge who co-owns real property with an attorney is disqualified, subject to remittal, from cases in which that attorney appears, for the duration of the co-ownership relationship and for two years after it completely terminates (see Opinion 17-143).

         The same principle applies here. The judge is disqualified, subject to remittal, in matters involving the deputy town attorney while their economic relationship is ongoing. Of course, the deputy town attorney’s resignation from the LLP has at least begun to sever this relationship. Once their business and financial relationship completely terminates, the judge must continue to disqualify him/herself, subject to remittal, for a two-year period in cases involving the attorney.³

         As a reminder, remittal is not available if any party is appearing without counsel or if the judge is unwilling or unable to make full disclosure of the basis for disqualification on the record (see e.g. Opinion 17-160). However, assuming all parties are represented by counsel and the judge wishes to offer an opportunity for remittal, the usual three-step process applies. First, the judge must fully disclose the basis for disqualification on the record. Second, without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree that the judge should not be disqualified. Third, the judge must independently conclude that he/she can be impartial and be willing to participate in the case. If all three steps are satisfied, the judge may accept remittal of disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding (see id.; 22 NYCRR 100.3[F]).

Appearance Before Another Judge of the Town Court

         A part-time attorney judge may not permit her/his “partners or associates” to practice law before any judge of the court where he/she presides (see Judiciary Law § 471; 22 NYCRR 100.6[B][3]; Opinion 16-63).

          Although the judge and the deputy town attorney are not formally associated in the practice of law, we must still consider whether they are deemed “associates” for the purposes of section 100.6(B)(3). As explained in Opinion 10-162 (citations omitted), we construe the term “associate” here

more broadly than the traditional notion of a law firm associate, including sharing office space in some circumstances. However, ... where the landlord/tenant relationship between a part-time judge who practices law and another attorney involves only sharing a reception or waiting room and a conference room, with no other indicia of association between them, the judge may permit the attorney to practice [before other judges] in the judge’s court.

Thus, a part-time judge and an attorney are not necessarily deemed “associates” merely because they share the same rental space, utilities and annual copier maintenance fee (see Opinion 14-194). However, as discussed in Opinion 16-63 (citations and footnote omitted):

a part-time judge and his/her attorney tenant who otherwise maintain separate legal practices are “associates” for purposes of section 100.6(B)(3) where (a) they share the same fax machine and the common fax number appears on their respective business letterheads; or (b) the attorney occasionally acts as “of counsel” for the judge; or (c) they share secretarial services.

Any of these three links between a judge and his/her attorney tenant is sufficient to create, at the very least, an appearance that they are associated in the practice of law. Incoming telephone calls or faxes to a law office can often include personal, and even legally privileged, information that a client might reasonably expect to be shared only with her/his attorney and the attorney’s associates. Covering court appearances for another attorney creates an even stronger appearance of association.

Here, conversely, the deputy town attorney has resigned from the LLP through which he/she previously shared secretarial staff and jointly purchased malpractice insurance with the judge. If they no longer cover court appearances for each other, no longer share a receptionist or other secretarial staff, and no longer purchase malpractice insurance together, we conclude they can no longer reasonably be seen as “associates” for purposes of section 100.6(B)(3).

         Provided the judge and deputy town attorney have completely severed the links between them that previously created an appearance that they were associated in the practice of law (i.e. the shared secretarial services, joint malpractice insurance, and covering each other’s cases), the inquiring judge need not prohibit the deputy town attorney from practicing before another judge of the town court.

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         ¹ The inquirer, a practicing attorney, will soon assume part-time judicial office in a multi-judge town court; we refer to him/her as a judge for simplicity.

         ² The deputy town attorney was the judge’s law partner more than five years ago; when the partnership was dissolved, they “ceased sharing revenue” and “separated [their] law practice,” but the attorney remained in the LLP “to avoid any negative effects” from public dissociation of their law practices and to secure lower prices through their “collective purchasing ability.”

         ³ If the deputy town attorney rents office space from the LLP after his/her resignation, the business and financial relationship between them may become a mere landlord/tenant relationship. In general, a judge may accept rent from an attorney tenant, but must disqualify him/herself, subject to remittal, for the duration of the relationship (see Opinion 17-143). The obligation ends when the landlord/tenant relationship completely terminates (id.).