June 11, 2015
Digest: A full-time judge whose former law partner is temporarily unavailable for medical reasons may accept and deposit fees, issue checks to clients and the firm and pay expenses as necessary to wind up the law firm’s affairs, until the partner recovers or new counsel is hired but may not use law firm letterhead after assuming judicial office.
Rules: NY Const, art VI, § 20(b)(4); 22 NYCRR 100.4(G); Opinions 14-119; 13-08; 07-05; 05-130(A); 04-137; 97-09; 96-89; 95-12; 89-136; Matter of Intemann, 73 NY2d 580 (1989).
An attorney who is winding down his/her law practice prior to assuming full-time judicial office states that his/her law partner will be unavailable for a period of time for medical reasons. The attorney asks whether he/she may, after assuming judicial office, assist in the firm’s day-to-day administration until the judge’s former partner recovers or new counsel is hired. Specifically, the attorney would like to pay bills, accept settlement checks, and dispose of the funds appropriately by depositing them and, once they clear, issue checks to clients and the firm for previously earned fees and expenses. The attorney also asks whether he/she may, after assuming the bench, use law firm letterhead to explain the circumstances to judges presiding over the partner’s cases and request adjournments as needed.
A full-time judge may not practice law and therefore may not complete unfinished legal work after assuming the bench (see NY Const, art VI, § 20[b]; 22 NYCRR 100.4[G]; Opinion 96-89; Matter of Intemann, 73 NY2d 580 ). Therefore, a full-time judge must withdraw from client representation, cease accepting new clients, and “wind down” the judge’s law practice before assuming judicial office (see e.g. Opinion 05-130[A]). A judge must arrange for new counsel to handle any outstanding motions scheduled to be heard after the judge assumes judicial office (see Opinion 04-137) and remove his/her name from the law firm’s masthead (see Opinion 89-136). The Committee has also advised that a judge, who represented a defendant just prior to assuming the bench and briefed six points raised on appeal before another attorney assumed the representation, may not permit his/her name to be included on an appellate brief that will be submitted after he/she assumes the bench (see Opinion 13-08).
However, the Committee has advised that a full-time judge may nonetheless complete certain functions after assuming judicial office if those functions are truly ministerial or administrative in nature and necessary to effectuate dissolution of the judge’s practice (see e.g. Opinion 05-130[A]; 04-137; 96-89). Such ministerial functions include collecting fees and contingency fees to the extent earned before assuming office, sending periodic bills to former clients, and maintaining an escrow account to process fees earned before assuming office (see Opinions 05-130[A]; 95-12); processing settlement checks from cases settled prior to the beginning of the judge’s term of office but received after that time and signing a closing statement in such matters (see Opinion 04-137); signing a referee’s deed and related papers arising out of a determination the judge made as a referee before assuming the bench (see Opinion 96-89); and filing tax forms and unemployment forms for his/her former law firm employees and organizing and storing financial records as may be required by applicable law and/or the Rules of Professional Conduct (see Opinion 07-05).
Therefore, the inquiring judge may accept and deposit fees, issue checks to clients and the firm and pay expenses as necessary to wind up the law firm’s affairs, until the partner recovers or new counsel is hired (see Opinions 07-05; 05-130[A]; 04-137; 96-89; see also Opinion 97-09 [“There are no specific time limitations, but the judge must dissolve the corporation as soon as is practicable after commencing judicial office”]).
In the Committee’s view, the judge may not use law firm letterhead when writing to request adjournments after assuming judicial office, as this would create the appearance that the judge is continuing to practice law (cf. Opinions 13-08 [full-time judge may not be credited as author of appellate brief after assuming the bench]; 07-05 [full-time judge must not “use the same logo that [he/she] used for [his/her former] law practice” when placing newspaper advertisements containing a seasonally appropriate greeting to the public]). As it would also be inappropriate to use judicial stationery for this purpose (see generally Opinion 14-119), the judge should instead, to the extent practicable, have someone else, such as a paralegal, send letters explaining the situation and requesting an adjournment.