PERSONAL & CONFIDENTIAL
Opinion 22-11
February 22, 2022
Dear : This responds to your inquiry (22-11) asking if you, as a new part-time judge, may continue to: (1) serve as a notary public after taking the bench; (2) maintain a real estate brokers license; (3) own real estate rental properties, whether individually or with your siblings, and either directly or as a member of an LLC; (4) own an ATM business together with another individual, where the business owns several ATMs placed in local businesses and you stock the ATMs and receive income from the surcharges paid by the customer.
Notary Public
A part-time judge may accept private employment or public employment, provided such employment is not incompatible with judicial office and does not conflict with or interfere with the proper performance of the judge’s duties (see 22 NYCRR 100.6[B][4]). We have advised that there is nothing inherently unethical in a judge serving as a notary public, particularly in light of the authority otherwise given to judges to take oaths and acknowledgements (see Opinions 14-107, 03-42; 94-78).
Because you are not subject to the constitutional prohibition of holding another public office (see N.Y. Constitution Art. VI, §20[b]; Opinion 14-107), you may continue to serve as a notary public.
A part-time judge may own a real estate agency and therefore may be a real estate broker (see Opinion 96-55; cf. 22 NYCRR 100.4[D][3] [prohibition applies to a “full-time judge”]). We have previously advised that a judge who is the owner of a real estate agency should exercise recusal in matters involving real estate clients who have either purchased or sold property through the agency for a period of two years following the conclusion of the particular transaction and the earning of the fee (see Opinion 96-55).
Therefore, you may continue to maintain a real estate broker’s license (cf. Opinion 05-130[A]; 95-100). However, you must disqualify yourself in cases involving clients and customers of brokered real estate deals for a period of two years following the conclusion of the transactions and commissions earned (see e.g. Opinions 17-160; 96-55).
Ownership of Real Estate Rental Properties
The Rules Governing Judicial Conduct permit a part-time judge to engage in ordinary business activity, subject to certain restrictions not applicable here (22 NYCRR 100.4[D][1][2]-[4]).
We have previously advised that a judge may own real property through a solely owned LLC and may serve as an officer of family corporations that invest in real estate (see Opinion 10-77; 90-101; 22 NYCRR 100.4[D][2]). We have also advised that a judge may lease real property, owned by the judge, to a business entity (see Opinion 14-71) and may be a member, with his/her siblings, of an LLC that will own several pieces of real estate (see Opinion 10-203[B]).
Therefore, it is ethically permissible for you to own real estate rental properties individually, as a single member LLC, and as a co-owner with your siblings.
Ownership of an ATM Business
Part-time judges are exempt from the prohibition on serving as an “employee or other active participant of any business entity” (22 NYCRR 100.4[D][3]; 100.6[B][1]), “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]).
Thus, we have said that a part-time judge may accept employment in various areas of banking (see Opinions 20-76 [may accept temporary employment with a bank verifying information on a loan application] 18-77 [may serve as chief financial officer/treasurer for an airport authority, with oversight of accounting and financial affairs]; 13-165 [may actively participate in commercial activity as a member of a bank’s advisory board]).
In our view, the responsibilities associated with the ownership of an ATM business do not appear to conflict or interfere with the proper performance of your judicial duties. Accordingly, it is ethically permissible for you to maintain partial ownership interest in the ATM business.
Enclosed for your convenience are Opinions 20-76; 18-77; 17-160; 14-107; 13-165; 10-203(B); 10-77; 05-130(A); 03-42; 96-55; 95-100; 94-78; 90-101 which address this issue.
Very truly yours,
Margaret T. Walsh
Supreme Court Justice
Committee Co-Chair
Lillian Wan
Supreme Court Justice
Committee Co-Chair