Opinion 22-174

December 15, 2022

Digest:       (1) At this time, the remaining duties described are not ministerial, as this specific matter remains open and pending in significant respects until and unless the judge receives information indicating that the former client has either consulted with an attorney or has refused to do so.
(2) Thereafter, if the former client wishes to proceed with the settlement as negotiated before the judge assumed full-time judicial office, the judge may complete the remaining ministerial functions necessary to finalize the settlement and collect previously earned legal fees.

Rules:        22 NYCRR 100.2; 100.2(A); 100.4(G); Opinions 21-13; 17-157; 17-33; 15-128; 05-130(A); 04-137; 96-89; 95-12; Matter of Intemann, 73 NY2d 580 (1989).

Opinion:

         A full-time judge recently learned that additional action is required to finalize the settlement on a personal injury case involving a very young minor that the judge represented while in private practice. The proposed settlement was reached years ago (the carrier agreed to tender the applicable policy limits), but since the matter involved a “bad accident with a limited policy,” the minor’s parents chose to wait for the child to reach the age of majority and decide whether to sign the releases. The former client is now a legal adult and wishes to sign the releases. The judge asks if it is ethically permissible to have the former client sign the necessary releases and thereafter collect the judge’s agreed-upon fee.

         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 (22 NYCRR 100.2[A]). A full-time judge may not practice law and therefore may not complete unfinished legal work after assuming the bench (see 22 NYCRR 100.4[G]; Matter of Intemann, 73 NY2d 580 [1989]).

         Accordingly, a full-time judge must withdraw from client representation, cease accepting new clients, and “wind down” the judge’s law practice before assuming judicial office (see e.g. Opinion 05-130[A]).

         Nonetheless, a full-time judge may complete certain functions after assuming judicial office, if those functions are truly ministerial or administrative in nature and necessary to effectuate dissolution of the judge’s practice (see e.g. Opinions 05-130[A]; 04-137; 96-89). Such ministerial functions include collecting fees and contingency fees to the extent earned before assuming office, sending periodic bills to former clients, and maintaining an escrow account to process fees earned before assuming office (see Opinions 21-13; 15-128; 05-130[A]; 95-12); having releases signed and mailed (see Opinion 17-157); processing settlement checks from cases settled prior to the beginning of the judge’s term of office but received after that time and signing a closing statement in such matters (see Opinion 04-137). The tasks must not involve completion of unfinished legal work, but we have recognized that, in some instances, a judge may complete administrative and ministerial tasks that were delayed because an individual involved in the matter had not yet reached the age of majority (see Opinion 17-33 [full-time judge may complete service as executor of a former client’s will by signing and transferring title to an heir, as the judge could not previously transfer title while the heir was a minor]).

         Here, although the carrier tendered the insurance policy limits before the judge assumed the bench, the judge was unable to complete the settlement because the parents of the judge’s client wanted the client to reach the age of majority and decide for him/herself. The parents’ decision seems to reflect that the judge’s then-client was a very young minor, the injuries were extremely serious, and the policy limits were relatively low. On the specific facts presented, we conclude the remaining duties as described are not ministerial at this time, as the matter remains open and pending in significant respects unless and until the judge receives information indicating that the former client either has consulted with an attorney or has refused to do so.

         If and when the judge receives that information, and assuming the former client then advises that they wish to proceed with the previously negotiated settlement, at that point the judge may perform the ministerial functions necessary to finalize the settlement and collect previously earned legal fees. This may include sending releases to the former client, depositing the settlement funds, distributing settlement checks to the former client, and collecting the agreed-upon legal fees.