Opinion 89-34

April 4, 1989

Topic:          An attorney in private practice, nominated by the Governor to fill a judicial vacancy in Family Court, inquires as to the propriety of taking a leave of absence from his legal partnership instead of resigning therefrom.

Digest:         Before assuming the office of Family Court judge the nominee must terminate his law practice as an individual and member of a firm.

Rule:            N.Y. Const. Art. 6 Section 20(b)(4); Code of Judicial Cconduct, Cannon 5(f); 22 NYCRR section 100.2(a)(c)

Opinion:

         The Governor has nominated a practicing attorney, who is a member of a law firm, to fill a judicial vacancy in Family Court. Senate confirmation is pending. The interim term of appointment expires December 31, 1989, at which time such nominee, if unsuccessful in the quest for a full term, may be returning to the practice of law. The nominee requests guidance whether, upon taking the judicial oath of office, it is necessary immediately to resign from membership in the law firm, or whether, as a new judge, it would be sufficient to take a leave of absence from the firm, deferring an outright resignation from the partnership until January 1, 1990, in case a full term was won.

         The New York State Constitution in pertinent part provides that “A ... judge of the family court ... who is elected or appointed ... may not ... (4) engage in the practice of law, act as an arbitrator, referee or compensated mediator in any action or proceeding or matter or engage in the conduct of any other profession or business which interferes with the performance of his judicial duties.” (N.Y. Const. Art. 6 Section 2[b][4]).

         In view of that proscription of constitutional dimension we conclude that the nominee must terminate his practice of law, individually, and as a member of a law firm, upon assuming the office of Family Court Judge. To continue as a member of an active law partnership, even inactively, amounts, in our opinion, to the practice of law which is forbidden in any manner whatsoever (Code of Judicial Conduct, Canon 5[F]). Additionally, a Judge must avoid impropriety and the appearance of impropriety and it could be perceived that a judge on leave of absence from his firm lends the prestige of judicial office to advance the private interests of others (22 NYCRR 100.2[a][c]).

         The nominee also asks what, if any, is an acceptable period of time in which to conclude private practice commitments before assuming judicial office. Such request presents no ethical inquiry, but relates to practical concerns best left to resolution by adoption of a time schedule satisfactory to the nominee and acceptable to the District Administrative Judge. We make clear, however, that any involvement with the practice of law must be terminated before assuming judicial office.