Opinion 21-13

January 28, 2021

Digest:         A new full-time judge may engage in activities designed to wind down their prior law practice and collect previously earned legal fees, including billing an assigned counsel program for services “as an attorney” and complying with the requirements of a state administrative agency to obtain payment on previously awarded legal fees.

Rules:          NY Const art VI § 20(b)(4); 22 NYCRR 100.2; 100.2(A); 100.4(G); Opinions 18-22; 17-157; 15-126; 00-03; 95-12.

Opinion:

         A new full-time judge previously practiced before the Worker’s Compensation Board and also represented clients through the local assigned counsel program. The judge asks about collecting fees for this prior legal work, in light of these agencies’ specific requirements.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A full-time judge “shall not practice law,” but “may act pro se” (22 NYCRR 100.4[G]; see also NY Const art VI § 20[b][4] [prohibiting certain judges from practicing law]).

         We have said a full-time judge may collect legal fees they earned before assuming the bench (see Opinions 15-126 [citing many prior opinions]). If the fees were fully earned before taking office, the judge may accept the fees without violating the law practice prohibition or rules restricting the financial and business activities of full-time judges (see Opinion 00-03). These activities may include sending periodic bills to former clients and maintaining an escrow account to process fees earned prior to assuming office (see Opinion 95-12). A judge may even collect fees previously earned that were “not payable for one or more years” (id.). In general, the litmus test for such winding-down activities is whether they are ministerial or administrative in nature and necessary to effectuate dissolution of the judge’s practice (see Opinion 17-157).

         Here, the inquiring judge previously served as an attorney for a local assigned counsel program, and it appears that vouchers submitted for payment must include an electronic certification of the work “as an attorney.” In context, we conclude that this certification cannot reasonably be seen as the judge’s improperly holding him/herself out as a practicing attorney, as it is clearly part of the overall ministerial activity of billing for past legal work. We conclude it is permissible under the Rules.

         The judge also previously served as an attorney for a claimant in a matter before the Workers Compensation Board. The Board, as a state administrative agency, has specific procedures for the payment of fees to attorneys earned through the representation of claimants before the board. Although the overall case is not fully concluded, the judge’s role ended over a year ago and resulted in an award of fees tied to future action in the case. The fees have not yet been paid but have apparently been set aside to be paid to the judge, as the former client was required to sign off on the fees at the time of the award. The judge would like to request those fees and must do so by submitting a “Request for Further Action” to the Board. On the facts presented, we likewise conclude these steps are both reasonable and necessary to collect previously earned legal fees and help effectuate the dissolution of the judge’s former law practice, and will not require the judge to engage in the prohibited practice of law (see e.g. Opinion 18-22). In sum, it is permissible for the judge to comply with administrative and procedural requirements of a state agency to collect legal fees the judge earned as an attorney.