Opinion 90-140

December 11, 1990

Digest:         A part-time judge, who also is an attorney, may not permit an      associate of the judge's law firm to appear in the judge's court, but partners, associates and employees of a part-time judge may appear in other justice or village courts in the same county. Whether an attorney who performs per diem work is an associate depends on the facts.

Rules:          22 NYCRR 100.5 (f)

Opinion:

         Two attorneys, partners in a law firm, are part-time judges in adjoining towns. They submit the following inquiries:

(1) Can an attorney who is not a partner, associate or employee of their law firm, but who does some per diem work for their law firm, appear in either of their courts?

(2) Can the per diem attorney appear in their courts in a matter for which the attorney was retained by their law firm?

(3) Can partners, associates or per diem attorneys of their law firm appear in any other part-time court of the county in which their courts are located?

         Section 100.5 (f) of the Rules of the Chief Administrator of the Courts provides in relevant part as follows:

A judge who is permitted to practice law shall, nevertheless, not practice law in the court in which he or she is a judge, whether elected or appointed, nor shall a judge practice law in any other court in the county in which his or her court is located which is presided over by a judge who is permitted to practice law. ... No judge who is permitted to practice law shall permit his or her partners or associates to practice law in the court in which he or she is a judge. No judge who is permitted to practice law shall permit the practice of law in his or her court by the law partners or associates of another judge of the same court who is permitted to practice law. A judge may permit the practice of law in his or her court by the partners or associates of a judge of a court in another town, village or city who is permitted to practice law.

         As to per diem attorneys, if there is a frequent on-going relationship between the judge's law firm and the per diem attorney, the attorney, for this purpose, should be treated as an associate and may not appear except in those courts where an associate of the judges' law firm may appear. If the law firm has any interest or involvement in the case, or if the law firm is the attorney of record, the case cannot be brought in the courts where the partners serve as judges. However, the other partners, associates and per diem employees of the law firm can appear in other part-time courts in the county where the judges' courts are located.