Opinion 96-141

December 12, 1996

Digest:         (1) A newly-elected judge, who had been serving as an Administrative Law judge for a governmental agency, may not, upon assuming judicial office, perform any further services in connection with any pending, uncompleted matters that were being handled as an Administrative Law judge. (2) A full-time judge may not practice law in New York or in any other jurisdiction. (3) A newly-elected full-time judge must terminate his/her law practice, including properly disposing of escrow accounts being held on behalf of clients. (4) A full-time judge may not simultaneously maintain a full-time teaching position at a local university.

Rules:          N.Y. Const. Art. VI, Section 20(b)(4); 22 NYCRR 100.3(A); 100.4; 100.4 (A)(3), 100.4( C)(2)(a); 100.4(G); Opinions 89-34; 89-38.

Opinion:

         A newly-elected full-time judge asks a series of questions concerning the judge’s private law practice in New York and other states, and his/her employment as a per-diem Administrative Law judge for a governmental agency and as a professor at a local university.

         The judge asks whether, after assuming judicial office, it is permissible to complete work on matters that were being handled as an Administrative Law judge. Specifically, the judge would like to know if he/she can continue to write decisions, or complete unfinished hearings. The judge also asks if receipt of the per diem fee from the government agency for any work done after taking office is proper if the work is done on weekends.

         The Rules Governing Judicial Conduct prohibit a full-time judge from accepting an appointment to a governmental position that is concerned with issues of fact or policy in matters other than the improvement of the law, the legal system or the administration of justice. 22 NYCRR 100.4( C)(2)(a). Hearing testimony, determining facts and adjudicating controversies as an Administrative Law judge for another governmental agency would be prohibited by this rule. Accordingly, once judicial office is assumed, the judge may not perform any further services in connection with pending uncompleted matters that were being handled as an Administrative Law judge.

         The judge also asks if it is proper to maintain a law practice in three other states. The Constitution of the State of New York and the Rules Governing Judicial Conduct prohibit the practice of law by a full-time judge (NY Const. Art. VI, section 20(b)(4); 22 NYCRR 100.4(G)). The prohibition is not limited to the geographic boundaries of New York State. Therefore, the judge may not practice law or maintain a law office in New York or in any other jurisdiction.

         The judge also asks what, if anything, should be done with the money currently being held in trust accounts for certain client escrows. This Committee has previously held that before assuming the office of full-time judge, there must be termination of an existing law practice. Opinions 89-34; 89-38. Therefore, any money held in the judge’s capacity as a practicing attorney should be forwarded to the attorney(s) now representing the clients on whose behalf the funds are being held. If a client does not specify an escrowee, then the judge should, prior to commencing office, transfer the funds to another attorney and notify the client of the transfer.

         The judge also asks if he/she can hold a full-time teaching position at a local university as long as the hours do not interfere with court time. While the Rules Governing Judicial Conduct do allow the judge to lecture and teach, such permission is not unrestricted and is subject to the other limitations articulated in the Rules. The Rules require that a judge conduct extra-judicial activities in a manner that minimizes the risk of conflict with judicial office and does not interfere with the proper performance of judicial duties. 22 NYCRR 100.4 and 100.4(A)(3). Further, judicial duties must take precedence over all the judge’s other activities. 22 NYCRR 100.3(A).  It would be extremely difficult, if not impossible for a judge to maintain, address and give precedence to the full-time obligations of a judge, including obligation to minimize conflicts with judicial duties, while simultaneously maintaining full-time teaching obligations at a university. In the opinion of the Committee, it would be improper for a full-time judge to simultaneously maintain a full-time teaching position at a local university. The judge may maintain a part-time teaching position as long as the teaching does not interfere with the proper performance of the judge’s judicial duties.