Opinion 20-204

February 17, 2021

Dear :

         This responds to your inquiry (20-204) about your obligations as you assume full-time judicial office.

         1. Must you pay to have your name removed from the glass of the shared suite in which you previously practiced law?

         We believe you must arrange to have your name removed (see Opinion 89-136). The question of who pays is a legal question, not a matter of ethics.

         2. Assuming you may no longer serve as a notary public, is it sufficient, from an ethics perspective, to simply cease notarizing documents - or must you also give notice to the state about terminating your notary public status?¹

         If your judicial position is subject to the constitutional prohibition on holding another public office or trust (see NY Const art VI § 20[b]), you “may not hold the public office of Notary Public” and therefore “may not, as such, notarize documents” (Opinion 03-129). We note the provision at issue refers to a “judge of the court of appeals, justice of the supreme court, judge of the court of claims, judge of a county court, judge of the surrogate’s court, judge of the family court or judge of a court for the city of New York” (Opinion 13-111 fn 1, quoting NY Const art VI § 20[b]).

         The question about what steps, if any, a judge must take in order to relinquish the office of notary public (e.g. destroying or discarding the notary stamp or card and/or providing formal notice to the state) is a legal question on which we cannot comment.

         3. May you, after assuming full-time judicial office, collect a legal fee on a matter that is being handled by another attorney, where any legal fees are contingency-based and you are “expecting a fee once a settlement is reached”?

         Provided (a) your proposed share of the anticipated legal fees was fully earned before you assumed judicial office and (b) the fee arrangement is permissible under the Rules of Professional Conduct and governing law, you may accept payment of such legal fees, even if they are contingent and not payable for several years (see e.g. Opinion 19-148[B]).

Finally, with respect to all three questions, while we cannot advise you on your legal obligations (see generally Judiciary Law § 212[2][l]; 22 NYCRR 101.1), we note that “a judge who makes a good-faith legal determination based on the apparently controlling statutes and case law (if any) is necessarily acting ethically” (Opinion 19-80 [citations omitted]).

         Enclosed for your reference are Opinions 19-148(B); 19-80; 13-111; 03-129; 89-136.

                                       Very truly yours,

                                       Margaret T. Walsh                                                                          Supreme Court Justice

                                       Committee Co-Chair

                                       Lillian Wan

                                       Acting Supreme Court Justice

                                       Committee Co-Chair

Encls.

________________________

¹ You also note that you plan to discard your notary stamp and destroy your notary public card.