Opinion 22-15(A)

January 27, 2022

Digest:         A new full-time judge may (1) maintain a mailbox at their prior office address; (2) dispose of wills prepared while an attorney, as permitted by law; and (3) be reimbursed for expenses incurred before assuming the bench while handling a matter as an attorney.

Rules:          SCPA § 2507; 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(1); 100.3(B)(8); 100.4(G); 22 NYCRR pt 1200, Rule 1.15(c)(1)-(4); Opinions 21-87; 16-55; 15-126;; 13-08; 00-77; 95-116; NYSBA Op. 1182; Roy Simon, Preserving Client Wills: What Are a Lawyer’s Obligations? (NYPRR Feb. 2000).

Opinion:

         A new full-time judge asks several questions concerning winding down the judge’s former private law practice.

         A judge 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 judge also must “respect and comply with the law” (id.) and “be faithful to the law and maintain professional competence in it” (22 NYCRR 100.3[B][1]). However, a full-time judge “shall not practice law” (22 NYCRR 100.4[G]).

1. Maintenance of Mailbox at Prior Office Address

         While the judge’s most recent employment was in the public sector, the judge nonetheless maintained a mailbox at the judge’s former office address to receive parole board letters and client correspondence from the judge’s prior solo practice. The judge now asks if it is permissible to continue to maintain this mailbox.

         We conclude the judge may maintain a mailbox at their prior office address for the receipt of mail from or about former clients. In this regard, we note that, although a full-time judge may not give legal advice to former clients or continue legal work commenced before assuming the bench (see e.g. 22 NYCRR 100.4[G]; Opinions 21-87; 13-08), there is no blanket prohibition against communicating with former clients or responding to factual questions about a former representation. Indeed, judges may speak to or about their former clients (see e.g. Opinion 95-116), subject to generally applicable restrictions on judicial speech and conduct (see e.g. 22 NYCRR 100.2[C] [character witness rule]; 100.3[B][8] [public comment rule]; 100.4[G] [practice of law]). Furthermore, we see no danger that the public could perceive the judge as aligned with any law firm because they receive mail at a mailbox associated with the judge’s former solo practice.

2. Disposition of Client Wills

         The judge asks what they should do with wills in the judge’s possession which the judge had drafted for various clients. It seems the judge is considering filing them with the Surrogate’s Court of the appropriate county, if permitted.

         In Opinion 00-77, we considered a new full-time judge’s proposal to “write to former clients to inform them that the law practice has been discontinued, and how they may retrieve their wills and other legal documents.” We said that was ethically permissible (see id.). Beyond that, what specific measures should be taken with respect to wills drafted while the judge was in private practice is primarily a legal question and thus beyond our purview (see e.g. SCPA § 2507 [filing of wills with Surrogate]; 22 NYCRR 1200, Rule 1.15(c)(1)-(4) [receipt and maintenance of property from third persons]; NYSBA Op. 1182 [a lawyer must safeguard former clients’ wills indefinitely, even when the testators’ locations and/or circumstances are unknown, unless the law provides an alternative]; Roy Simon, Preserving Client Wills: What Are a Lawyer’s Obligations? [NYPRR Feb. 2000]).

         The judge may thus dispose of former clients’ wills, as permitted by law (cf. 22 NYCRR 100.2[A] [judge must “respect and comply with the law”]). We also note that a judge who makes a good-faith legal determination based on apparently controlling legal authority is necessarily acting ethically (see e.g. Opinion 16-55). Accordingly, if the judge concludes that it is legally required or permitted to file a former client’s will with the Surrogate’s Court, we see no ethical prohibition against this conduct.

3. Reimbursement for Legal Expenses in a Client Matter

         Before assuming the bench, the judge incurred certain expenses in the course of representing a client. The judge has not yet been reimbursed for these expenses, and now asks if it is ethically permissible to receive this reimbursement.

         A full-time judge may be reimbursed for expenses previously incurred while in private practice, just as they may collect legal fees that were fully earned before assuming the bench (see e.g. Opinion 15-126 [citing many prior opinions]).