Opinion 94-88

September 22, 1994

Digest:         A part-time judge may not participate as an attorney in a civil action brought on behalf of the victim of an assault, which action is based upon acts committed by a criminal defendant whose case had been presided over by the judge; nor may the judge share in the fee earned by the judge’s law firm in such representation of the plaintiff.

Rules:          22 NYCRR 100.5(f)

Opinion:

         A part-time Town Justice who is a member of a law firm asks whether the law firm can represent a prospective plaintiff in a civil law suit arising out of acts committed by a person who had been the defendant in a criminal proceeding in the judge’s court. The defendant in that case had been arrested on a charge of assault in the third degree and pleaded guilty to a reduced charge. A fine was imposed.

         Subsequently, the victim of the assault consulted an attorney in the judge’s office with regard to commencing a negligence action against the owner of the premises where the assault occurred, based upon an alleged failure to properly supervise and control the premises. There is no intention of bringing a civil action against the perpetrator of the assault i.e., the defendant who had appeared in the judge’s court.

         In the opinion of the Committee, while it may be permissible for the judge’s law firm to institute such an action, the judge may not personally participate in any way in the action or share in the fee that might be earned by the judge’s law firm in the matter. Section 100.5(f) of the Rules of the Chief Administrator, which sets forth the constraints upon a judge who, as in this instance, is permitted to practice law, forbids such a judge from becoming “engaged as an attorney in any court, in any matter in which he or she has participated in a judicial capacity.” The two matters involve the same persons (i.e., the victim, and the assailant who appeared before the judge), and are based upon the same underlying events. For purpose of implementation of the Rule, the judge, therefore must be deemed to have participated in the matter and is thereby bound by the restrictions set forth above.