Opinion 23-12
February 2, 2023
Digest:A judge need not disqualify merely because an attorney in the case shares office space with the judge’s attorney sibling, where the attorneys maintain separate and independent law practices and do not share support staff or letterhead or otherwise hold themselves out as associated in the practice of law.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(d)(iii); 100.3(E)(1)(e); 100.6(B)(3); Opinions 19-43; 16-63; 14-194; 10-94; 09-100; 08-171/08-174; 08-27; 06-111.
Opinion:
The inquiring judge’s sibling is an attorney in private practice. The judge’s sibling shares office space with other attorneys, including a common waiting area, but they are not partners; each maintains an independent law practice. The signage in front of the building names each attorney separately, and each attorney has their own individual letterhead and their own support staff. Nor is there any indication in the inquiry that any of these attorneys have a business or financial relationship with the judge’s sibling. On these facts, the judge asks if disqualification is required when those other attorneys appear in the judge’s court.
A judge must always avoid even appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge, therefore, must disqualify in any proceeding in which the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including matters in which a second-degree relative is “acting as a lawyer” (22 NYCRR 100.3[E][1][e]) or has “an interest that could be substantially affected by the proceeding” (22 NYCRR 100.3[E][1][d][iii]).
The key question here is whether the office-sharing attorneys should be treated as associated in the practice of law with the judge’s sibling for conflicts purposes, given that a judge is disqualified, subject to remittal, when “another lawyer in the sibling’s law firm appears before the judge” (Opinion 06-111).
Somewhat analogously, in considering whether an attorney is an “associate” of a part-time lawyer judge within the meaning of Section 100.6(B)(3), we have construed that term “more broadly than the traditional notion of an associate [in a law firm], so as to encompass per diem attorneys; ‘of counsel’ attorneys; and even attorneys with certain office-sharing arrangements” (Opinion 19-43). However, we repeatedly concluded in this context that being “associates” requires something more than even an ordinary landlord/tenant relationship. For example, we found an attorney to be the judge’s “associate” under Section 100.6(B)(3) where the attorney “rents part of the law office suite from the judge and does ‘of counsel’ work for the judge’s law practice” (Opinion 09-100); or where the judge provides office space to a lawyer and in exchange the lawyer “must perform a minimum number of hours of legal work for the judge and is named on the judge’s malpractice policy” (Opinion 10-94). We reached the same conclusion where the attorney is the judge’s tenant and one of these three conditions applies: they (i) share a fax machine and fax number which is included in their respective stationery, or (ii) they cover court appearances for each other, or (iii) the judge’s receptionist answers phone calls for the tenant (see Opinion 16-63).
Conversely, we found that mere office-sharing does not make an attorney a part-time lawyer judge’s “associate” under Section 100.6(B)(3) when they “maintain separate practices in a shared rented space and also share the utilities and the annual copier maintenance fee” but “are not affiliated with each other’s practice” and maintain separate staff, accounting/payroll; separate telephones, and separate email, business and trust accounts,” as well as separate exterior signage and advertisements (Opinion 14-194).
We have also considered a circumstance where a judge’s personal attorney, who has been a solo practitioner, enters into an arrangement with two other attorneys to “share office space and clerical staff in exchange for a fixed percentage of the fees he/she charges” (Opinion 08-27). Clearly, a judge is disqualified from all matters involving the “partners and/or associates” of the judge’s personal attorney while the representation is ongoing (see e.g. Opinion 08-171/08-174). But in Opinion 08-27, we found that the relationship did not warrant disqualification. We noted that “the space and staff sharing arrangement between the judge’s personal attorney and [the other] attorneys is not in the nature of a continuing relationship between an attorney and a law firm that would warrant the judge’s disqualification” (id.). We noted that the percentage payment to be paid “is in the nature of rent and does not evidence a financial interest in the other attorneys’ practice” (id.).
Here, too, we conclude the attorneys who share office space with the judge’s sibling should not be treated as partners or associates of the judge’s sibling, as they do not appear to hold themselves out as associated in the practice of law. Significantly, they maintain separate letterhead, separate fax and phone numbers, separate staff, and their names are listed separately on the signage in front of the building. There is no indication that they cover cases for each other or have any other interest in each other’s practices. Indeed, we have recognized that “[a]ttorneys who are solo practitioners often enter into such office-sharing arrangements for purely economic reasons and maintain entirely separate law practices” (Opinion 09-100). On the facts presented, as there is no indication of any type of association between the law practices of the judge’s sibling and the other attorneys who share office space, we conclude the judge’s impartiality cannot “reasonably be questioned” (22 NYCRR 100.3[E][1] [emphasis added]) in matters where those office-sharing attorneys appear. Accordingly, the judge is not disqualified from matters involving those attorneys, provided the judge can be fair and impartial.