Opinion 22-86

May 5, 2022

Digest:    A new full-time judge may submit vouchers for legal fees earned for work performed as assigned counsel prior to assuming the bench.

Rules:     NY Const art VI § 20(b)(4); 22 NYCRR 100.2; 100.2(A); 100.4(G); Opinions 21-13; 18-22; 15-126; 10-139; 95-12.

Opinion:

         The inquiring full-time judge assumed the bench a little more than three years ago. The judge asks if it is ethically permissible to submit payment vouchers for work performed as assigned counsel prior to assuming the bench.¹

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

         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 (Opinion 21-13 [“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”]).

         Moreover, we have said a full-time judge may collect legal fees they earned before assuming the bench (see e.g. Opinions 18-22; 15-126), even if those previously earned fees were “not payable for one or more years” (Opinion 95-12). Likewise, a full-time judge may continue to receive legal fees through a sheriff’s department wage garnishment over an extended period of time (see Opinion 10-139).

         Here, too, we conclude the inquiring judge may collect legal fees fully earned before the judge assumed judicial office, to the extent permitted by law. Therefore, the judge may submit payment vouchers for work previously performed as assigned counsel. We do not impose any time limit as a matter of judicial ethics, but would nonetheless encourage the judge to complete any remaining submissions in as timely a manner as possible.

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¹ While we cannot address legal or administrative issues, the judge advises that the vouchers are still timely under the terms of the local assigned counsel program.