Opinion 93-71

October 28, 1993

NOTES:

1. Please note that in 1996, Section 100.3(b)(3) was superseded by Section 100.3(D), which sets forth a different standard for a judge's disciplinary responsibilities.

2. This opinion is also amended in part by Opinion 15-231 ("A judge who observes apparent misconduct by an attorney in the course of presiding over a case may wish to wait until conclusion of the case before taking action for a number of reasons including, but not limited to, obtaining a more complete picture of the attorney’s conduct and/or minimizing unnecessary disruptions and delays in the case.").

Digest:         It is improper for a part-time judge, who is permitted to practice law, personally to appear in a court in the same county in which he or she is a judge, presided over by another judge who is permitted to practice law, although another attorney from the same firm may appear. The inquiring judge also must report conduct of another justice, which apparently violates this rule, to the Judicial Conduct Commission if he or she considers it to constitute "substantial" violation of judicial ethics. The judge has the discretion whether to report such conduct if the judge concludes it is not a “substantial” violation. If the inquiring judge determines the conduct should be reported, then it should be reported immediately, but the judge is not required to recuse himself or herself from the case in which the conduct occurred.

Rules:          22 NYCRR 100.5(f); 100.3(b)(3)

Opinion:

         A part-time judge, who is an attorney, recently had a part-time judge of a court located in the same county appear before him as the attorney for a defendant in a criminal case. When the inquiring judge became aware, after two or three appearances, of the judicial position held by the attorney, the inquiring judge brought the prohibition of the rule restricting the part-time law practice of judges (22 NYCRR 100.5[f]) to the attorney-judge's attention and all subsequent appearances in the case were handled by another attorney from the same firm.

         The part-time judge in whose court the appearances were made now inquires whether (1) it was improper for the attorney-judge to appear, (2) it is permissible for another attorney from the same firm now to appear since the initial representation was undertaken by the attorney-judge, (3) whether he or she is obligated to report the violation to the Commission on Judicial Conduct, even though he or she believes that the attorney-judge was unaware of the prohibition in the rule and immediately withdrew from the case, (4) assuming he or she has an obligation to report to the Commission on Judicial Conduct, whether he or she should do so immediately or at the conclusion of the case, and (5) whether he or she has a mandatory or discretionary obligation to recuse himself or herself in the case, whether or not there is an obligation to report the conduct.

         1. It is improper for a part-time judge who is an attorney to appear in a court in the same county in which he or she is a judge, which is presided over by a judge who is permitted to practice law (section 100.5[f]) of the Rules of the Chief Administrator 22 NYCRR 100.5[f]).

         2. It is permissible for another attorney from the same firm to appear even though the initial representation was undertaken by an attorney-judge (section 100.5[f]) of the Rules of the Chief Administrator).

         3. Section 100.3(b)(3) of the Rules of the Chief Administrator provides:

A judge shall take or initiate appropriate disciplinary measures against a judge or a lawyer for unprofessional conduct of which the judge may become aware.

         As stated in prior opinions of this Committee, a judge must determine whether the specific conduct constitutes a “substantial” violation of judicial ethics. If the judge concludes that it does, the judge should report the conduct to the Commission on Judicial Conduct; if the judge concludes that it does not, there is no ethical obligation to report and the decision is in the judge's discretion.

         4. If the judge concludes that the conduct should be reported, it should be reported immediately.

         5. The judge has no mandatory or discretionary obligation to recuse himself or herself from the case regardless of whether the judge reports the conduct to the Commission on Judicial Conduct.

(See this Committee’s Opinions 90-10, [Vol. V]; 87-10, [Vol I]; 91-36, [Vol. VII] and 92-42, [Vol. IX]).