Opinion 24-110

June 20, 2024

Digest:  A new full-time judge may engage in activities designed to wind down his/her prior professional corporation and collect previously earned legal fees.  The judge may represent him/herself in negotiating a fee splitting or quantum meruit agreement with a successor law firm regarding legal fees earned prior to assuming the bench, although the fee agreement must be permissible under the Rules of Professional Conduct.  Where the professional corporation’s bank account remains open to pay expenses in winding down the practice, a check for the judge’s share of legal fees may be made payable to the professional corporation.

Rules:   NY Const art VI § 20(b)(4); 22 NYCRR 100.2; 100.2(A); 100.4(G); Opinions 22-86; 22-24(A); 21-13; 19-148(B); 15-128; 12-96; 12-41; 95-12; 93-44; 89-134.

Opinion:

          Before assuming the bench, the inquiring full-time judge maintained a private law practice organized as a professional corporation.  One personal injury case was recently resolved, and the client’s successor counsel has acknowledged the judge’s retainer agreement and lien.  The judge asks if it is ethically permissible to advocate on his/her own behalf with the successor firm to seek “either a split fee or quantum meruit” arrangement, or if the judge must retain counsel to handle the negotiations.  The judge further notes that the professional corporation’s bank account remains open, at the advice of an accountant, to handle payments related to winding down the practice and for purposes of an annual workers compensation audit for the judge’s former employees.  Accordingly, the judge also asks if checks for previously earned legal fees may be made payable to the judge’s former professional corporation, or if they must be made payable to the judge personally.

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

          We have advised that a new full-time judge may engage in activities designed to wind down his/her prior law practice and collect previously earned legal fees (see Opinions 22-86; 21-13) and may maintain a checking account to receive fees and pay expenses incurred to close out the practice (see Opinions 95-12; 89-134).  A full-time judge may collect previously earned legal fees “even if the fees are contingent and not payable for some years, provided the fee arrangement is otherwise proper” (Opinion 19-148[B]; see also Opinions 22-86; 95-12; 93-44).  A full-time judge should not use law firm letterhead or judicial stationery in the winding down process (see Opinion 15-128 [noting that “someone else, such as a paralegal” may send letters on behalf of the judge’s former firm to request adjournments as needed]). 

          Starting with the principle that a full-time judge may “act pro se” (22 NYCRR 100.4[G]), we have said a judge may represent him/herself in any court having jurisdiction over a legal matter (see Opinion 12-41).  Indeed, a judge charged with violating the vehicle and traffic law may “negotiate with the prosecutor for reduction or dismissal of the charged violation, either pro se or through an attorney” (Opinion 12-96 [reminding the judge not to “use or invoke his/her judicial title/status”]).  Nor is this principle limited to litigation, as a judge may represent him/herself in negotiations with his/her former law partners (see e.g. Opinion 22-24[A]). 

          Accordingly, this judge may represent him/herself in negotiating a fee split or quantum meruit agreement and/or any related litigation that may ensue.  While we cannot advise about the propriety of any proposed fee sharing agreement or other matters of attorney ethics, it should be consistent with the Rules of Professional Conduct (see e.g. Opinion 19-148[B]). 

          Finally, since the professional corporation’s bank account remains open at this time to pay expenses related to winding down the practice, a check from the successor law firm may be made payable to the professional corporation.