April 19, 2001
Digest: An attorney who has been retained by a lawyer-judge on a per diem basis to prepare real estate contracts on behalf of the judge in connection with the judge's law practice, is deemed to be an associate of the judge in the practice of law and therefore may not practice law in the judge's court.
Rule: 22 NYCRR 100.6(B)(3); Opinions 88-39 (Vol. II); 96-36 (Vol. XIV); 97-60 (Vol. XV)
A part-time village justice and practicing attorney submits the following inquiry:
I would like to hire a local attorney to do some per diem work preparing real estate contracts in connection with my private practice. The attorney appears in my court frequently on various (unrelated) matters and is concerned about potential conflicts of interest.
Could the attorney continue to appear before me, except to the extent I might have to recuse myself for bias, actual conflict, etc.?
In our opinion, the attorney in question under the arrangement contemplated falls within the category of "associate" of the inquiring judge in the practice of law and therefore would not be permitted to practice law in the judge's court under section 100.6(B)(3) of the Rules Governing Judicial Conduct. The fact that the attorney maintains an independent practice does not negate that conclusion. See Opinion 88-39 (Vol. II) [sharing of office space constitutes being an associate]. In interpreting section 100.6(B)(3), the word “associates” has not been restricted to lawyers who are salaried employees of a lawyer-judge, but may encompass other arrangements, such as the sharing of office space (Opinion 88-39 [Vol. II]), or an “of counsel” status (Opinion 96-36 [Vol. XIV]), and may even include the use of a common fax number (Opinion 97-60 [Vol. XV]).
Also to be included in that category, in our view, is the arrangement contemplated here, where the lawyer-judge enters into an arrangement with another attorney in multiple matters in which the judge is apparently the attorney of record, and the attorney will perform specified legal services in connection with those matters. We conclude that the retained attorney in those circumstances is associated with the judge in the practice of law and therefore may not practice law in the judge's court.