Opinion 24-33

March 14, 2024

Digest:  Where a full-time judge’s former client has contacted the judge to complain about the successor attorney, the judge may suggest the former client retain new counsel, but should not otherwise provide legal advice or assistance. 

Rules:   22 NYCRR 100.2; 100.2(A); 100.4(G); Opinions 22-190; 21-87; 90-36.

Opinion:

          The inquiring full-time judge previously represented a client on a particular matter.  Before assuming the bench, the judge met with the client and a successor attorney to hand over the entire case file, including a draft motion that needed to be filed with the court.  The former client recently contacted the judge and complained that the successor attorney “did not file the motion” and “is now seeking more money” for the representation.  The judge asks what the judge “can or should do” to help this former client.

A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  A full-time judge “shall not practice law” (22 NYCRR 100.4[G]) and thus “may not complete unfinished legal work after assuming the bench” (Opinion 21-87 [citations omitted]). 

          In our view, the inquiring judge may suggest to the former client that they retain new counsel (cf. Opinion 90-36).  Any guidance or assistance beyond this, on behalf of a former client who is complaining to the judge about the successor attorney’s inaction on the case, could create an appearance that the judge is engaged in the practice of law. 

          We note that Opinion 22-190 provides guidance in the event that the former client’s new counsel (if retained) wishes to speak with the judge about the former representation.