Opinion 97-149

January 29, 1998

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:         (1) A newly-elected Town Justice may not permit members of his/her law firm to continue to represent clients in cases pending before either judge in the Town Court. (2) A judge may not transfer or seek to transfer any matter to another court solely for the purpose of allowing a lawyer-judge, or the partners and associates of the lawyer-judge to remain as the attorney in the matter.

Rules:          22 NYCRR 100.6(B)(3); Opinions 97-106; 90-191 (Vol. VI); 90-52 (Vol. V).

Opinion:

         A newly-elected Town Justice is a member of a law firm that practices in the local town and village courts. The other judge of the Town Court is not an attorney. The newly-elected judge asks a series of questions concerning the practice of law by himself/herself and his/her partners and associates before the other Town Judge and other part-time town and village courts in the county.

         Section 100.6(B)(3) of the Rule Governing Judicial Conduct provides that a part-time judge:

(3) shall not permit his or her partners or associates to practice law in the court in which he or she is a judge, and shall not permit the practice of law in his or her court by the law partners or associates of another judge of the same court who is permitted to practice law, but may permit the practice of law in his or her court by the partners or associates of a judge of a court in another town, village or city, who is permitted to practice law.

The Rule makes no distinction between those cases that were already pending in the judge's court at the time the part-time judge assumed office and future cases. Thus, the inquiring judge may not permit partners or associates of the law firm to continue to represent clients in the judge's court. Opinion 97-106. Further, the Committee has previously advised that a judge may not transfer a matter to another court solely for the purpose of permitting a lawyer-judge or his or her partners or associates to continue to remain as attorney in the matter. Opinion 90-191 (Vol. VI); 90-52 (Vol. V.).