June 12, 2014
Digest: A judge may preside in matters involving a local prosecutor who maintains office space in the same building as the judge, where neither of them owns the building, they are not associated in the practice of law, and they have no landlord/tenant or other business relationship with each other.
Rules: Judiciary Law §471; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.6(B)(1); 100.6(B)(3); Opinions 13-162; 12-13; 11-89; 10-203(B); 10-162; 09-100; 05-130(B); 91-143 (Vol. VIII); Joint Opinion 94-93/94-107 (Vol. XII).
The inquiring part-time judge states that he/she rents office space in the same building as the local prosecutor whose cases constitute approximately one-third of the judge’s overall judicial caseload. The judge further states that he/she was previously an associate in the attorney’s former law firm for one year, although that employment ended more than a decade ago. Since then, the two have maintained separate law offices in the same building. They have “separate offices, supplies, staff, telephone numbers, bank accounts, escrow accounts, letterhead and clients” as well as separate advertising and separate leases. They share only (a) “the same entrance, waiting area and conference room,” (b) “the copier and fax machine” and (c) the expense of the common gas and electric meters. The judge explains that the common fax header states “Law Office.” Although they both pay rent to the same landlord, neither has any ownership interest in the building. And while neither has any business relationship with each other, they occasionally lunch together. Under these circumstances, the judge asks about his/her ethics obligations when the local prosecutor appears in his/her court.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A part-time judge who is also a lawyer may engage in the private practice of law (see 22 NYCRR 100.6[B]) but must not permit his/her partners or associates to practice law in the court where he/she presides (see Judiciary Law §471; 22 NYCRR 100.6[B]). In addition, a judge must disqualify him/herself in a proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]).
The Committee has advised that if an attorney is deemed a judge’s “associate” in the practice of law, then the judge must not permit the attorney to appear in the court where the judge presides, even before another judge of the court (see Opinion 11-89; 22 NYCRR 100.6[B]).
Although the Committee has construed the term “associate” in Section 100.6(B)(3) “more broadly than the traditional notion of a law firm associate” (Opinion 09-100 [discussing prior opinions]), the mere fact that an attorney and judge share a reception or waiting room and a conference room, without more, does not make them “associates” absent some further “indicia of association between them” (Opinion 09-100). For example, the Committee has advised that, where an attorney and judge share office space and secretarial services, there is “an inference of association that invokes the prohibition” (Joint Opinion 94-93/94-107 [Vol. XII]). Similarly, if an attorney and judge share office space and a fax machine, there may be an inference of association, unless they take steps such as using different cover sheets to ensure that the fax transmissions are “devoid of any indicia of association” (Opinion 11-89).
Here, the facts set forth in the inquiry reveal that no such indicia of association exist. Merely paying rent under separate leases to the same third-party landlord, sharing a waiting area, conference room, copier, and fax machine (where the common fax header merely states “Law Office”), and splitting the gas and electricity bill (where their offices are not separately metered) does not, without more, create any appearance that they are associated in the practice of law. All other aspects of their respective practices are kept entirely separate and distinct; there is no indication that they take on each other’s cases, share secretarial services, or the like.
The Committee notes that in some cases where a part-time judge’s law office is in the same building as another attorney’s law office, there may be additional factors to consider, for example if the judge and the attorney have an ongoing landlord/tenant relationship (see Opinions 11-89; 10-203[B]; 10-162; 05-130[B]), or if the judge and the attorney are co-owners of the building (see Opinion 13-162). Neither of these factors applies here.
Nor does the inquiring judge’s and the local prosecutor’s former association in the practice of law, more than a decade ago, change the result. The Committee has advised that a judge must disqualify him/herself when the judge’s former associate appears in the judge’s court for a period of two years after the date on which the professional relationship ended (see Opinions 12-13; 91-143 [Vol. VIII]). As the professional relationship between the inquiring judge and his/her former colleague ended more than ten years earlier, the judge is not required to disqualify him/herself or to disclose the former relationship.
Accordingly, under the circumstances presented, the fact that the local prosecutor is a former colleague who maintains office space in the same building as the judge and shares certain common areas and facilities does not, without more, impose any ethical obligation on the judge when the prosecutor appears in the judge’s court.