Opinion 88-38

                                                       April 11, 1988

Topic:          Propriety of a part-time judge renting office in premises in which practicing attorney has a proprietary interest.

Digest:         It would be improper for a judge to rent space in premises partially owned by an attorney who practices in the same court where the local judge sits and who may refer matters to the Judge.

Rules:          22 NYCRR 100.5(c)(1) and (3); 100.2(a)(c); Canon 5(c)(1)

Opinion:

         A part-time Town Court Justice, who is considering opening his own law practice, asks whether it would be appropriate for him to rent space in an office building owned by a corporation of which an attorney is an officer and in which building the attorney also has a suite of offices. The Judge will pay rental for his own office, for use of the law library, and for secretarial services. The Judge also may receive referrals from the lawyer/landlord. While the Judge recognizes that the lawyer and his associates could not properly appear before him, he is concerned about whether this relationship would preclude the attorney's firm from appearing before his co-justice, as well.

         Section 100.5(c)(1) of the Rules of the Chief Administrator, which concerns judges' financial activities, provides that:

A judge shall refrain from financial and business dealings that tend to reflect adversely on impartiality, interfere with the proper performance of judicial duties, exploit judicial position, or involve the judge in frequent transactions with lawyers or persons likely to come before the court on which he or she serves.

         Significantly, the rule is expressly couched in terms of “the court on which” the Judge “serves” rather than merely before “the Judge”. This indicates that the business dealings contemplated here would be inappropriate since the lawyer, as indicated by the inquiry, does appear in the particular local court on which the Judge serves. The situation where a landlord/lawyer who has significant control over the cost of the judge/tenant's rent and other related services, appears in the court where the judge/tenant serves, albeit before a co-justice, would create an impermissible appearance of impropriety. While the inquiring judge poses the question in terms of whether the lawyer would be precluded from appearing before the co-justice, pursuant to our rules, the answer here is limited to the inappropriateness of the judge's own contemplated action. (Cf. Matter of Laurino, N.Y.L.J., April 7, 1988, p.4).

         Attention is also directed to Canon 5C(3) which states that:

A judge should manage his investments and other financial interests to minimize the number of cases in which he is disqualified.

         Thus, the proposed financial arrangement is further contra-indicated since it would require the judge's disqualification in all cases involving the lawyer and his associates.

         This opinion is advisory only and is not binding upon the Commission on Judicial Conduct or the Office of Court Administration.