Opinion 88-108

October 27, 1988

Please Note: While Opinion 12-173 reaffirms that “a part-time judge’s partners and associates ‘may practice before judges who are permitted to practice law in another town or village court,’” and recognizes the abrogation of Opinion 87-10, it also suggests the present opinion’s “efforts to distinguish Opinion 87-10 may be confusing and should be disregarded.”  See Opinion 12-173 fn 4.

Topic:          Propriety of (1) a part-time judge receiving a fee in cases he referred to other attorneys and (2) of his partners or associates appearing before other town and village justices.

Digest:         (1) A part-time judge may not receive a fee, either directly or indirectly, for matters which originated in his court and (2) his partners and associates may practice before judges who are permitted to practice law in another town or village court.

Rules:          22 NYCRR 100.5(f)

Opinion:

         A village justice has inquired as to the propriety of his practice in cases where individuals whom he represents as clients appear before his court in criminal matters. The Judge indicates that he has disqualified himself from hearing these matters and transferred the cases to the Acting Village Justice. He has made arrangements for the clients to be represented by an independent law firm for which he receives an indirect fee. The judge also raises an issue concerning the conditions and limitations on his partners and associates appearing before another village or town justice.

         A judge may not receive, directly or indirectly, any part of a fee for a matter adjudicated in his court or for any matter that originated in his court.

         In Opinion 87-10, dated January 28, 1988, the Committee outlined the practice of partners and associates of part-time judges permissible under 22 NYCRR 100.5(f). Partners or associates of a part-time judge may not practice law in that judge's court, but may do so in a court of another town, village or city, presided over by a judge who is permitted to practice law. However, to the extent that the associate is acting as an employee of a part-time judge, and handling cases for that part-time judge, his appearance in any court is equivalent to an appearance by the part-time judge himself and accordingly should be subject to the same restrictions. Therefore, such an associate may not practice in his employer's court or in any other Court in the same county which is presided over by a judge who is permitted to practice law. If the associate is not appearing in a case that is actually a case of the part-time judge, and is not appearing at that judge's request and under his instructions, he may appear before a judge of a court in another town, village or city who is permitted to practice law, but not in the court in which the part-time judge, with whom he is associated, is a judge.

         This opinion is advisory only and does not bind either the Office of Court Administration or the Commission on Judicial Conduct.