Opinion 90-23

October 23, 1990

Digest:         A part-time judge who is permitted to practice law may practice in another court in the county before a non-lawyer judge, even if another judge of that court is a lawyer-judge permitted to practice law. Cases, however, should not be reassigned from a lawyer-judge to a lay judge solely to permit another lawyer-judge to remain as an attorney on the case.

Rules:          22 NYCRR 100.5(f)

Opinion:

         A part-time judge who is permitted to practice law asks whether such a judge may practice law in other courts in the same county before lay judges, even where co-judges sitting in those courts are lawyer-judges permitted to practice law.

         Section 100.5(f) of the Rules of the Chief Administrator provides that a judge who is permitted to practice law shall not 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.” The Committee recognizes that this language is not entirely clear on its face, because it is susceptible to two constructions, one the narrower construction that the attorney-judge is prohibited from practicing only before lawyer-judges who are permitted to practice law, and two, the broader construction that the attorney judge may not practice before any judge, lawyer or non-lawyer, of any court where at least one judge sits who is permitted to practice law.

         After consultation with the Executive Committee of the New York State Magistrates' Association, and upon consideration of the rationale for the rule, the Committee concludes that the narrower construction is more appropriate. The prohibition is designed to prevent the possibility of lawyer-judges appearing before one another and giving one another favored treatment on a quid pro quo basis. The danger is remote where the lawyer-judge appears before a lay judge, even though the lay judge's co-judge is a lawyer-judge who is permitted to practice law. In addition, section 100.5(f) flatly restricts a judge from practicing in his or her own court, regardless of who is presiding, in contrast to the language in the rest of the section, which only restricts the judge from practicing in another court in the county presided over by a judge who is permitted to practice law.

         Therefore, the Committee is of the opinion that a part-time judge who is permitted to practice law may practice before any lay judge in the county, except, of course, in the lawyer-judge's own court, but may not appear before any part-time judge in the county who is permitted to practice law. However, it should be noted that cases should not be reassigned from a lawyer-judge to a lay judge solely to permit another lawyer-judge to handle the matter as an attorney for a party.