Opinion 21-132

September 9, 2021

Digest:         (1) A part-time lawyer judge who was assigned as a special prosecutor before assuming the bench, and did not seek to withdraw or be relieved as special prosecutor on assuming the bench, may request and accept permissible legal fees and disbursements for prosecutorial work performed before assuming the bench, but may not accept compensation for prosecutorial work performed after assuming the bench. The judge must take reasonable steps to amend or supplement any previously submitted vouchers as needed and to return any compensation already received for prosecutorial work erroneously performed after assuming judicial office.

(2) A part-time lawyer judge may not ordinarily appear before another part-time lawyer judge in the same county, but may do so if that judge is a full-time employee of the Unified Court System and presides in a different court.

(3) Where all judges of a court in the same county are part-time lawyer judges, a practicing part-time lawyer judge may not represent a client before any judge of that court and may not ask for a non-attorney judge outside of that court to be assigned to the case.

(4) A part-time lawyer judge must prohibit their partners and associates from appearing in the judge’s own court, but need not prohibit their partners and associates from appearing before the part-time lawyer judges of other courts in the same county.

Rules:        Judiciary Law §§ 16-17; 212(2)(l); 471; 22 NYCRR 100.2; 100.2(A); 100.6(B)(2)-(4); 101.1; Opinions 21-13; 20-204; 16-167; 16-143; 15-126; 14-57; 12-173; 11-150; 10-104; 10-94; 10-73/10-100/10-167; 09-149; 09-06; 08-210/09-01; 08-132; 07-163; 93-33; 88-131.

Opinion:

       The inquiring part-time lawyer judge raises several questions about the judge’s legal fees and practice limitations, which we will address in detail below.

       A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A part-time attorney judge may accept “public employment in a federal, state or municipal department or agency, provided that such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties” (22 NYCRR 100.6[B][4]). Moreover, they may engage in the practice of law, subject to limitations (see e.g. 22 NYCRR 100.6[B][2]-[3]; Judiciary Law §§ 16-17; 471). For example, a part-time judge must “not practice law in the court on which the judge serves” (22 NYCRR 100.6[B][2]; Judiciary Law § 16) and also “shall not permit his or her partners or associates to practice law” in that court (22 NYCRR 100.6[B][3]; see also Judiciary Law § 471). As a corollary, a judge may not represent clients in matters that “originated in” the judge’s court (see e.g. Opinion 12-173; Judiciary Law § 16; cf. Judiciary Law § 471 [limitations on those “connected in law business with a judge”]). In addition, a part-time lawyer judge also must not practice law “in any other court in the county in which his or her court is located, before a judge who is permitted to practice law” (22 NYCRR 100.6[B][2]).

1. Compensation for Prosecutorial Work

       Before assuming the bench, the inquirer was appointed by a court to serve as a special prosecutor in certain cases. While these cases were pending, the inquirer became a part-time judge. Unaware of the prohibition on judges serving as prosecutors, the judge did not seek to withdraw or be relieved as special prosecutor but instead completed this work after assuming judicial office. The judge thereafter submitted a bill for all work performed. At the time of writing, the judge has received payment on one of these cases. The judge first asks if they may accept and/or retain legal fees for work as a special prosecutor in these cases, bearing in mind that the judge commenced work as a special prosecutor before assuming the bench but completed the work afterward.

       Clearly, the judge may request and accept permissible legal fees and disbursements for prosecutorial work performed before assuming the bench (see e.g. Opinions 21-13; 15-126).

       However, in light of the clear prohibition on judges serving as prosecutors (see e.g. Opinions 16-167; 07-163; 93-33), we believe that the judge should not accept compensation for prosecutorial work performed after assuming the bench.

       We note that the judge will need to determine which portions of the work were performed before and after assuming judicial office. The judge must take reasonable steps to amend or supplement the vouchers as needed and to return any compensation already received for prosecutorial work erroneously performed after assuming judicial office (cf. Opinion 21-13 [full-time judge, who must cease practicing law, may nonetheless take “reasonable and necessary” administrative and procedural steps “to collect previously earned legal fees and help effectuate the dissolution of the judge’s former law practice”]).

       With respect to the judge’s questions about how to return fees already received and/or how to revise or supplement a pending voucher, we believe these are primarily practical or legal questions beyond our authority to answer (see Judiciary Law § 212[2][l]; 22 NYCRR 101.1; Opinion 20-204).

2. Additional Practice Limitations

       The judge asks about limitations on practicing in other justice courts within the same county, where one or both judges are attorneys, given that a part-time lawyer judge must not practice law “in any other court in the county in which his or her court is located, before a judge who is permitted to practice law” (22 NYCRR 100.6[B][2]).

a) One Non-Attorney Judge; One Lawyer Judge

       Where a two-judge justice court in the same county has one non-attorney judge and one lawyer judge who is a practicing attorney, the inquirer asks if their law partner may appear before the lawyer judge.

       In answering this question, we first note some significant language in the Rules. Under Section 100.6(B)(3) (emphasis added), a part-time judge:

shall not permit the practice of law in his or her court by the law partners or associates of another judge of the same court who is permitted to practice law, but may permit the practice of law in his or her court by the partners or associates of a judge of a court in another town, village or city who is permitted to practice law.

In effect, a part-time lawyer judge must “prohibit” their partners and associates from practicing law in the judge’s court (22 NYCRR 100.6[B][2]), and the inquirer’s co-judges must observe or enforce the same prohibition (see 22 NYCRR 100.6[B][3]). But a part-time lawyer judge need not prohibit their partners and associates from practicing law in other courts, and the judges of such other courts “may permit” such attorneys to appear before them (id.).

         Thus, while a part-time judge’s partners and associates may not appear in the judge’s own court, we have said those partners and associates may generally appear in other courts in the same county, including courts where the judge may not appear because the judges are practicing attorneys (see e.g. Opinions 12-173; 11-150; 10-104; 10-94; 09-149; 08-210/09-01; 88-131; see also Opinion 16-143).

         Here, too, we conclude that the inquiring judge’s law partner may appear before the lawyer judge of the other court.¹

b) One Non-Attorney Judge; Lawyer Judge Is a Full-Time Court Employee

         The judge also asks about another two-judge justice court in the same county, where one judge is a lawyer and the other is not, but the lawyer judge is a full-time court attorney employed in the Unified Court System. Specifically, the inquiring judge asks if it is permissible for the inquirer or their law partner to appear before the lawyer judge who is a full-time Unified Court System employee.

         The answer is yes, as full-time Unified Court System employees are generally prohibited from engaging in the private practice of law (see Opinion 10-73/10-100/10-167). Accordingly, the inquirer may appear before part-time lawyer judges of other courts in the same county who are employed full-time by the Unified Court System (see id.).¹

         Again, the judge’s partners or associates generally may appear in justice courts in the same county, other than the judge’s own court (see e.g. Opinion 11-150). Accordingly, they also may appear before other part-time lawyer judges who preside in the same county and are employed full-time by the Unified Court System.

c) Two Part-Time Lawyer Judges

         Where both judges in another justice court in the same county are part-time lawyer judges, the judge first asks if they may permit their law partner to appear in that court. Again, the answer is yes; a part-time lawyer judge need not prohibit their partners and associates from appearing before other part-time lawyer judges in the same county (see e.g. Opinion 11-150).

         However, the judge’s final question is a novel one: Where all judges in another town court in the same county are part-time lawyer judges, may the inquiring judge “ask for a non-attorney judge outside of [that court] to be assigned to the case”?

         The inquiring judge has identified no statutory authority permitting attorneys to specifically request that a non-attorney judge be brought into a justice court that has only lawyer judges, and we are not aware of any. Absent such statutory authority, we believe such a request would create an appearance of impropriety, in that the judge would be requesting extraordinary special treatment (unavailable to attorneys who are not judges) to further the judge’s private practice of law. Therefore, on the facts presented, we conclude the judge must not make this request.

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¹ For completeness, we note that the inquirer may potentially represent a client in this court as well, if the matter is assigned to the non-lawyer judge at the outset. Once the case has been assigned, the judge may not request that it be transferred; but the judge may “request that a case be assigned to the judge(s) in that court, before whom the part-time lawyer judge may appear, if the request is made before that matter has been assigned to a judge” (Opinion 09-06; see also Opinions 14-57; 08-132).

² Where, as here, one judge is a full-time Unified Court System employee and the other is a non-lawyer, there is no need to consider the “assigned at the outset” rule (see fn 1, supra), as the inquirer may appear before either judge.