Opinion 20-78

April 30, 2020

Digest:         A full-time court attorney-referee may commence a legal action for eviction and collection with respect to real properties he/she owns in any court of competent jurisdiction, but must do so through counsel unless he/she is the sole owner of the property.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(G); Opinions 19-121; 19-26; 17-72; 12-96; 10-193; 09-12; 03-129.

Opinion:

         A full-time court attorney-referee, who also serves as a part-time village justice, owns certain apartments individually and others in a limited liability company (LLC) of which the referee and his/her sibling are the sole members. The referee asks if he/she may “bring legal actions for eviction and collection” in his/her name and on behalf of the LLC, or if he/she must retain an attorney to pursue such actions.

         A judge or quasi-judicial official 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 full-time court attorney-referee must not practice law, but may nonetheless “act pro se” (22 NYCRR 100.4[G]; Opinion 19-121).¹

         In general, “a judge may commence an action in a court of competent jurisdiction, whether proceeding pro se or through counsel” (Opinion 12-96 [citing prior opinions]). However, while a full-time judge or quasi-judicial official may appear pro se on matters involving only his/her own interests, he/she may not represent family members or others, even if their interests appear identical (see e.g. Opinions 17-72; 09-12; cf. Opinion 03-129 [full-time judge may not prepare wills for family members]).

         Accordingly, this referee may appear pro se in a legal action for eviction and collection in his/her own name, with respect to real properties he/she solely owns as an individual, but may not appear in court on matters relating to property either (a) jointly owned with his/her sibling or (b) solely owned by an LLC in which the referee and his/her sibling are members (see e.g. Opinions 19-26; 10-193).²

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¹ While a part-time lawyer judge may ordinarily practice law, subject to limitations, this judge’s status as a full-time court attorney-referee precludes him/her from doing so.

² We note for completeness that if the referee were the sole member of the LLC that owns the property, he/she could ethically appear pro se on behalf of the LLC, unless the corporation is required by law to appear by or through counsel (see Opinion 10-193).