Opinion 20-172

October 29, 2020

Digest:         A part-time attorney judge (1) may accept an 18-B assignment to appear before a full-time judge if the assignment does not involve an ethical or legal conflict but (2) may not represent a parent in a custody proceeding where recent or pending criminal proceeding(s) in the judge’s court brought by the other parent could affect a disposition in the custody proceeding.

Rules:          County Law Art 18-B; DRL § 237; Judiciary Law §§ 16, 471; 22 NYCRR 100.2; 100.2(A); 100.4(G); 100.6(B)(1)-(5); 822.1(b); Opinions 16-137; 16-13; 13-02; 12-77; 04-40; 03-105; 01-05; 99-97; 99-34; 98-82; 93-57; 88-50; 88-17(a)/ 88-25.

Opinion:

         The inquiring town justice, who also maintains a law practice in matrimonial and family law, asks several questions about accepting assignments under Article 18-B of the County Law. As the facts are complex, we will set them out in detail.

         The judge had preliminary consultations with Parent A relating to post-divorce proceedings, but Parent A ultimately declined to retain the judge for financial reasons after reviewing the proposed retainer agreement. Nonetheless, Parent A planned to submit the retainer agreement in support of an application for counsel fees, pursuant to DRL § 237. The judge was then assigned to represent Parent A in Supreme Court, pursuant to Article 18-B of the County Law, solely on the issue of custody, in post-divorce matrimonial proceedings.

         Meanwhile, Parent B was the complaining witness for an arrest warrant and order of protection against Parent A in the town court during the parents’ matrimonial proceedings. The inquiring judge had no involvement in those applications, either as a lawyer or as a judge.¹ We understand there are or were additional criminal proceedings against Parent A pending in the town court, “based on allegations made by [Parent B] within the last year,” which are assigned to a different justice.

         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 on the judge and his/her partners and associates (see generally 22 NYCRR 100.6[B][1]-[5]). For example, a part-time lawyer judge must not practice law “in the court on which the judge serves” (22 NYCRR 100.6[B][2]) or before another part-time lawyer judge in the same county (id.).

Question 1: May a part-time lawyer judge accept an 18-B assignment?

         A part-time lawyer judge may serve as an 18-B attorney in the same county before full-time judges and non-lawyer part-time judges (see 22 NYCRR 100.6[B][2]; Opinions 16-137; 04-40), but may not accept assignments from, or practice in, the court on which the judge serves (see 22 NYCRR 100.6[B][2]; Opinion 99-97). Local rules governing assignment of counsel provide that “[n]o attorney shall be assigned as counsel pursuant to section 35 of the Judiciary Law or section 722 of the county law when such assignment may involve an ethical or legal conflict” (22 NYCRR 822.1[b]).

         We thus conclude the inquiring judge may accept an 18-B assignment from a full-time judge, such as a supreme court justice, provided the assignment does not involve an ethical or legal conflict.

Question 2: May a part-time lawyer judge accept a limited scope appointment, at a substantially reduced fee, to represent an individual who was unable to afford the judge’s usual fee?

         The judge is also concerned about representing Parent A in a “limited scope” appointment under 18-B of the County Law (for custody only) at the legally fixed rate, which is less than one-third of the judge’s usual rate, because this prospective client (a) previously declined to retain the judge for financial reasons after reviewing the proposed retainer agreement (i.e. Parent A could not afford the judge’s regular fee for the matter) and (b) has post-divorce judgment matters pending beyond custody, including a counsel fee application under DRL § 237 which has not been decided.

         This question appears to involve primarily questions of law and/or attorney ethics, rather than matters of judicial ethics. Accordingly, we must decline to answer.

Question 3: May a part-time lawyer judge accept an 18-B assignment “for custody purposes only” when the other parent has filed multiple criminal complaints against the prospective client in the judge’s court within the past year?

         Finally, the judge is concerned about representing Parent A on custody issues, as there are recent or pending criminal complaints filed against Parent A in the judge’s court “based on allegations made by [Parent B] within the last year.” The judge notes that “court documents and materials from the justice court might become a part of the evidence proffered in the custody proceedings in Supreme Court.”

         Ordinarily, a part-time lawyer judge may represent a client in Supreme Court or Family Court, or any other court in which all of the judges are full-time judges who may not practice law (see Opinions 12-77; 04-40; 92-35; 22 NYCRR 100.4[G]). However, a part-time judge and his/her associates may not represent a client in any case “originating” in the part-time judge’s court, even before a full-time judge (see Judiciary Law §§ 16; 471; Opinions 03-105; 01-05; 99-34; 98-82; 88-50; 88-17[a]/88-25). For ethics purposes, we have said the word “originating” in this context “includes any case upon which some court action has been taken, such as filing a case in the court, or the issuance of an appearance ticket” (Opinion 88-50; see also Opinion 03-105 [“Notwithstanding the absence of judicial action other than disqualification and forwarding the matter to County Court, the proceeding did originate in the judge’s court.”]). No further judicial action is required for the prohibition to be invoked, and it is irrelevant whether the inquiring judge had any involvement in the matter while it was pending in his/her court (see Opinions 88-50; 03-105).

         Thus, for example, we said a part-time lawyer judge may not represent parties in a Family Court custody/visitation proceeding where there is a criminal proceeding pending in the judge’s court which was brought against the judge’s client by the other parent and which involves allegations and issues that would be material in the Family Court custody/visitation proceeding (see Opinion 01-05). Although the custody proceeding did not originate in the justice court, we said the two proceedings were clearly intertwined, and thus what occurs in the criminal proceeding could well affect a disposition in the Family Court proceeding (see id.; Opinion 13-02).

         Here, even if the pending criminal cases were transferred to another court, the inquiring judge’s representation of Spouse A would, at the very least, create an improper appearance, since the criminal cases originated in the judge’s court (see Opinions 16-13; 03-105; but see Opinion 93-57 [transfer occurred before the judge assumed judicial office]).

         Accordingly, we conclude the inquiring judge may not represent Parent A in a custody proceeding, as recent or pending criminal proceeding(s) in the judge’s court brought by Parent B could affect a disposition in the custody proceeding.

________________________________

¹ The town justice who signed the arrest warrant for Parent A and issued an order of protection for Parent B did so despite a clear conflict, and is no longer in office.