Joint Opinions 93-122/94-24

March 10, 1994

Digest:         Judge may not remain a partner in a general partnership organized for profit and should not participate actively in partnership business but should terminate the partnership relationship as soon as possible. Until such time as the partnership interest is terminated the judge should not preside over any matter involving any of the business partners. Upon termination, the judge may preside over cases brought by district attorney, although the judge and district attorney were associates and partners in the same law firm for several years, such association having ended four years ago.

Rules:          22 NYCRR 100.3 ( c ); 100.5 ( c ) (1)(2).

Opinion:

         A newly elected Surrogate Court judge who expects to be assigned regularly to handle felony matters in County Court asks whether it is permissible to preside over cases brought by the present district attorney. The judge and district attorney, when in private practice, were associated in the same law firm for three years and were partners for four additional years, for a total association of seven years, but the association ceased four years ago when the judge’s partner left the firm to become district attorney.

         However, it is also stated that the judge, along with the district attorney and eight other attorneys are involved in a real estate partnership which owns a parcel of real property in the locality in which the judge sits. It is acknowledged to be a business partnership although neither the judge nor the district attorney is involved in the management of the property which currently is listed for sale. Both the judge and the district attorney expect, in the near future, to relinquish their “interest in the title by deeding same to the partnership or to a third party”. Notwithstanding such transfer of interest, both the judge and the district attorney would remain liable on the underlying mortgage loan until the indebtedness is paid, which presumably would occur upon sale of the property to a third party.

         Were it not for the current existence of a business partnership relationship consisting of the judge, the district attorney and eight other attorneys, it would be the opinion of the Committee that the judge is not required to disqualify himself or herself under the circumstances. The former law partner is not appearing as a private practitioner, the disposition of whose cases involve legal fees, but rather as a public official. The judge and district attorney have not been associates or partners for four years. The rule of necessity would ordinarily require the judge to preside in these circumstances provided, of course, that the judge does not doubt his or her own ability to be impartial.

         These circumstances should be distinguished from Corradino v. Corradino, 48 NY2d 894 (1979), in which the court stated that where the attorney for a private party was associated with the judge’s former law firm, it would have been “better practice for the court to have disqualified itself and thus to maintain the appearance of impartiality”. The Committee is of the opinion that the fact pattern in this inquiry is readily distinguishable from the fact pattern in Corradino, insofar as it relates to the district attorney.

         This would suffice to dispose of the matter were it not for the judge’s present status as a business partner with the district attorney and eight other attorneys. Directly in issue is § 100.5 ( c ) of the Rule of the Chief Administrator:

(a) A judge shall refrain from financial and business dealings that tend to... involve the judge in frequent transactions with lawyers or persons likely to come before the court 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 nor shall he or she serve as an officer, director, trustee, partner, advisory board member or employee of any corporation, company, partnership or other association organized for profit or engaged in any form of banking or insurance.

         Based upon the facts presented, the judge should not sit in cases where the district attorney or any of the eight other attorneys mentioned are involved as long as such persons are business partners of the judge. In light of § 100.5 ( c) (2), the judge must terminate his/her partnership relationship as soon as possible and until that occurs, should not actively participate in partnership business.

         We are not, in this opinion, passing upon the propriety of a judge’s participation in other forms of ownership, e.g., tenants-in-common or limited partnership (See e.g. 22 NYCRR 100.5 ( c) (2) (iii); Opinion 89-108, Vol. IV).