April 15, 2003
Digest: A full-time judge may perform the ministerial act of executing new documents to replace those the judge had signed as a referee in a mortgage foreclosure action prior to assuming the bench.
Rules: NY Const. Art. 6 §20(b)(4); 22 NYCRR NY 100.4(G); Opinions 99-76 (Vol. XVIII);99-25 (Vol. XVII).
Prior to assuming the bench, a full-time judge served as the referee in a mortgage foreclosure action. The judge has now been asked to execute new documents to replace documents the judge signed at the time of foreclosure to facilitate transfer of title to the property. The judge asks whether it is ethically permissible to execute the documents.
A full-time judge is prohibited from engaging in the practice of law. N.Y. Const. Art. 6 §20(b)(4); 22 NYCRR 100.4(G). Article 6, §20(b)(4) of the New York Constitution also prohibits a full-time judge from serving as a referee. In two earlier opinions, however, the Committee concluded that a judge may perform purely ministerial acts related to a case the judge handled prior to assuming the bench. For example, in Opinion 99-25 (Vol. XVII), the Committee advised that a judge could file a judgment for a former client where the case was submitted for decision based on stipulated facts prior to the time the judge assumed the bench and the deciding judge had reserved decision. Similarly, in Opinion 99-76 (Vol. XVIII), the Committee advised that a judge could sign a form and obtain a copy of a currently dated Certificate of Letters of Testament indicating that the judge had not been substituted as the executor of the estate where the judge’s status as executor of an estate of a long-time family friend had begun long before the judge assumed the bench and the judge’s services had been completed. In the present inquiry, executing new documents to replace those the judge had signed as the referee in a mortgage foreclosure action prior to assuming the bench also is ministerial in nature and, therefore, is permissible.