Opinion 97-106

September 11, 1997

NOTE: This opinion is overruled, in part, to the extent it is inconsistent with Opinion 08-132, which introduced a distinction between matters assigned at the outset to a full-time judge and matters transferred after they were previously assigned to a lawyer-judge.

That is, Opinion 08-132 approves a procedure by which a court clerk assigns all matters of an attorney who is also part-time judge to a full-time judge at the outset, so that he/she never appears before another lawyer-judge.

The general rule remains, however, that matters already assigned to a lawyer-judge may not be transferred solely for the purpose of permitting another lawyer-judge or his/her partners to continue to appear as the attorney in the matter.

Digest:         A Town Justice and his/her co- judge may not permit members of a law firm to continue to represent clients in cases pending in the Town Court after the Town Justice becomes a partner or associate of the firm. A judge may not transfer or seek to transfer any matter to any other judge or court solely for the purpose of permitting a lawyer- judge, or the associates or partners of a lawyer-judge, to serve or remain as the attorney in the matter.

Rules:          CPL 170.15(3); CPLR 325(g); Opinions 90-191 (Vol. VI); 90-52 (Vol. V); 90-23(Vol. V).

Opinion:

         A Town Justice who is permitted to practice law has been offered a partnership position in a law firm that practices extensively in the local courts. The judge asks if the members of the law firm may complete their representation of their clients in matters pending in the Town Court by having the other Town Justice in the court adjudicate those matters, or, in the alternative, by seeking the transfer of those cases to another jurisdiction. The inquirer acknowledges that the firm may not represent any clients in new cases commencing in the judges's court.

         The Rules Governing Judicial Conduct prohibit the partners and associates of a judge from practicing in the judge's court. 22 NYCRR 100.6(B)(3). The partners and associates are prohibited from appearing both before the judge who is associated with the firm and before the co-judge in that court. This prohibition would apply even if the cases were commenced in the judge's court prior to the time that the judge formed the employment relationship with the law firm. Therefore, a Town Justice and his/her co-judge may not permit members of a law firm to continue to represent clients in cases pending in the Town Court after the Town Justice becomes a partner or associate of the firm.

         The transfer of proceedings from one local court to another local court may be ordered by a County Court Judge in statutorily authorized circumstances. CPL 170.15(3); CPLR 325(g). A transfer to allow a judge who is permitted to practice law (or the lawyer-judge's partners or associates) to serve or remain as attorney in the matter is not included among those authorized circumstances. This Committee has determined that it is inappropriate for any judge to transfer a case to a non-lawyer justice solely to permit a lawyer-judge to remain as an attorney in the case. Opinions 90-191 (Vol. VI); 90-52 (Vol. V); 90-23 (Vol. V). Thus, a judge may not transfer or seek to transfer any matter to any other judge or court solely to permit a lawyer-judge, or the associates or partners of a lawyer-judge, to serve or remain as an attorney in the matter.