Opinion 93-44

April 29, 1993

Please Note: The former Code of Professional Responsibility were replaced by the Rules of Professional Conduct in 2009. Rule 1.5 now addresses fees and division of fees.  Former DR 2-106(c)(2) has been replaced by Rule 1.5(d)(5)(I).

Digest:         A newly-elected judge may collect a percentage of a contingency fee awarded to the judge's former law partners for work performed prior to assuming office, provided the contingency fee arrangement is otherwise proper.

Rules:          22 NYCRR 100.2(a), 100.5(c)(1) and (2).

Opinion:

         A newly-elected full-time judge has requested an opinion as to whether the judge may receive a portion of the fees that the judge's former law partners expect to earn in two cases where a substantial portion of the legal work was performed before the judge took office. One case is a personal injury case in which there is a contingent fee agreement. In the second case, an appeal is being taken in a matrimonial case, and the client agreed to pay the firm a percentage of any additional amount received as a result of the appeal. The judge was primarily responsible for preparation of the brief on appeal in the second case before leaving practice.

         While a judge must avoid impropriety and the appearance of impropriety, there is no prohibition against a judge collecting legal fees which were earned before leaving practice (see, Advisory Opinions 88-118, Vol. 11, 84-134, Vol. IV). Accordingly, assuming that the fee arrangements were otherwise proper, the judge may receive a fair and reasonable percentage of the fees fairly allocable to services rendered before the judge ascended to the bench, which the judge's former partners ultimately earn in the two contingent fee cases.

         However, the attention of the inquiring judge is called to DR 2-106(c)(2) of the Code of Professional Responsibility, which reads as follows:

A lawyer shall not enter into an arrangement for, charge or collect ...

Any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of maintenance, support, equitable distribution or property settlement.

         Obviously, a judge can neither participate in nor profit from any arrangement that violates the Disciplinary Rules.