Opinion 89-106

September 12, 1989

Digest:         There is an appearance of impropriety where a part-time town justice’s spouse leases office space in a building the spouse owns to the lawyer-town justice spouse and also leases office space to another lawyer, who is a part-time district attorney, who sometimes appears in the lawyer-justice’s court in both private and public capacities; but no appearance of impropriety exists if the lawyer-part-time district   attorney will never appear in justice’s court.

Rules:          22 NYCRR 100.5(c)(1)

Opinion:

         A town justice, who also is a practicing lawyer, and who maintains a law office in a small office building owned by the justice’s spouse, asks the Committee whether it would be improper if the spouse also leases office space to another lawyer, who is a part-time district attorney, if such lawyer appears infrequently in both the lawyer's private and public capacities in the justice’s court.

         Section 100.5(c)(1) of the Judicial Conduct Rules of the Chief Administrator of the Courts (22 NYCRR 100.5[c][1]) provides as follows:

A judge shall refrain from financial and business dealings that tend to reflect 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 in which he or she serves.

         A leasehold arrangement involving monthly or periodic payments of rent by a lawyer to a judge involves “frequent transactions” that are prohibited by the rule, if the lawyer is a person likely to appear in the court in which the judge sits. Under all the circumstances, including the fact that the lawyer-justice maintains a law office on the premises, although the office building is owned by the spouse, appearance would be given to the public of a continuing business relationship between the judge and the lawyer, constituting an appearance of impropriety. This would be the case whether the lawyer appears frequently or infrequently in the judge’s court, and whether the lawyer appears in a private or public capacity.

         However, there would be no impropriety nor appearance of impropriety in the lease arrangement with the lawyer-part-time district attorney, if that lawyer never will appear in the justice’s court in either the lawyer’s private practice or as assistant district attorney.