June 12, 2014
Digest: A part-time lawyer/judge may not assist a long-time client and family friend with a case pending before another part-time lawyer/judge in the same county.
Rules: 22 NYCRR 100.2; 100.2(A); 100.4(G); 100.6(B)(1)-(2); Opinion 01-78 (Vol. XX); People v Alfani, 277 NY 334 (1919).
A part-time judge who is permitted to practice law asks whether he/she may provide behind-the-scenes advice and assistance to a defendant in a criminal case pending in a court in the same county where the judge presides, before another part-time judge who is permitted to practice law.1 The judge states the defendant and his/her relatives are among the judge’s long-time family friends and clients, and the defendant’s assigned counsel appears to be relatively inexperienced. The judge asks if he/she may, without appearing in court or contacting the judge or prosecutor:
(1) Contact the defendant’s assigned counsel to “determine the charges, obtain photocopies of all relevant documents,” and, based on this conversation, determine the prosecutor’s position on the charges.
(2) Call the drug treatment facility the defendant is attending “to determine the outcome of evaluation and urinalysis and treatment recommendations.” 2
(3) “Continue ongoing discussions” with assigned counsel regarding “the charges, treatment and the offer etc.”
(4) Discuss all these matters with the defendant and his/her relatives “so all are on the same page and have a full understanding of what is occurring.”
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Although a part-time judge, unlike a full-time judge, may engage in the private practice of law (see 22 NYCRR 100.4[G]; 100.6[B]), he/she may not do so before any part-time lawyer/judge in the same county (see 22 NYCRR 100.6[B]).
The Committee has previously advised that “the practice of law is not confined to appearances in court, but includes all actions taken on behalf of clients in matters connected with the law” (Opinion 01-78 [Vol. XX], relying on People v Alfani, 277 NY 334 ). Here, too, in the Committee’s view, the advice and assistance the inquiring judge wishes to provide the defendant likewise constitutes the practice of law. Thus, because the case is pending before another part-time lawyer/judge in the same county, the inquiring judge may not provide the advice and assistance described (see 22 NYCRR 100.6[B]).
1 The inquiring judge advises that the presiding judge is a personal friend.
2 The inquiring judge advises that he/she has known the chairperson of the facility for over a decade, and that the facility is “very active” in the judge’s court.