Opinion 91-108

October 31, 1991

Digest:         A full-time judge, who rents office space to an attorney, must disclose that relationship, and may preside over a case in which that attorney participates only with the consent of all parties.

Rules:          22 NYCRR 100.1(c)(1)(iii) and (d); 22 NYCRR 100.5(c).

Opinion:

         A full-time judge inquires whether the judge may permit an attorney who rents office space from the judge to appear in cases over which the judge presides.

         Section 100.5(c) of the Rules of the Chief Administrator provides in part:

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.

. . . .

(2) No full-time judge shall be a managing or active participant in any form of business enterprise organized for profit.

         In prior opinions (Opinions 90-101, Vol. VI, and 89-108, Vol. IV) this Committee concluded that a full-time judge could continue to own real property acquired prior to his or her assuming the bench. If the property is residential, the judge may continue to maintain it and collect the rents, since the degree of management involved is minimal. On the other hand, if the property is commercial, the judge should take no active role in the management or operation of the premises.

         An additional complication is presented if the judge leases premises owned by him or her to an attorney. Where the attorney is likely to appear frequently before the judge, this Committee has suggested that the wiser course would be to dispose of the investment or procure a different tenant (Opinion 89-31, Vol. 111).

         In any event, if the tenant does appear before the judge, the judge must disclose the relationship with the attorney, and may participate in the proceeding only upon the consent of all parties (cf. section 100.3[d]).