May 5, 2016
Digest: (1) A non-judge appointed to a judgeship is not subject to the Rules Governing Judicial Conduct until her/his term starts and he/she assumes judicial office by signing and filing the oath of office. (2) A part-time attorney judge may publicly display on his/her office building a non-partisan banner stating “Your vote counts in ___ County.” (3) A part-time attorney judge must prohibit his/her attorney tenant from practicing before any judge of his/her court if: they share a fax machine and fax number which is included in their respective stationery, or they cover court appearances for each other, or the judge’s receptionist answers phone calls for the tenant.
Rules: Judiciary Law §§ 16; 471; Public Officers Law §§ 10; 30(1)(h); 22 NYCRR 100.0(A); 100.2; 100.2(A); 100.3(E)(1); 100.4(A)(1)-(3); 100.5(A)(1); 100.5(A)(1)(ii); 100.6(A); 100.6(B)(1), (3); Opinions 16-13; 15-176; 15-01; 14-194; 14-91; 13-02; 12-173; 11-89; 10-162; 10-128; 09-233; 09-180; 09-100; 04-137; 98-92; 97-60; 96-97; 94-93/94-107.
An attorney who has received an appointment to serve as a part-time judge asks several questions about his/her obligations before and after assuming judicial office.
(1) Applicability of the Rules Governing Judicial Conduct
The inquirer, a non-judge whose term as a part-time appointed judge begins later this year, first asks when he/she will become subject to the Rules Governing Judicial Conduct. The inquirer has not yet signed or filed the oath of office.
The Rules Governing Judicial Conduct apply to “[a]ll judges in the unified court system and all other persons to whom by their terms these rules apply” (22 NYCRR NYCRR 100.6[A]), including, where appropriate, both quasi-judicial officials and “candidates for elective judicial office” (id.). The inquirer is not a quasi-judicial official, and will not become a judge until her/his term of office begins and he/she assumes judicial office by signing and filing the oath of office (see Public Officers Law §§ 10; 30[h]; Opinions 15-01; 04-137; 98-92). Nor is the inquirer a candidate for judicial office, since he/she is not “seeking selection for or retention in public office by election” (22 NYCRR 100.0[A] [emphasis added]; see also Opinions 15-176; 96-97). Rather, an executive official has appointed him/her to an appointive judicial office. Indeed, because it is not an interim appointment to an elective office, the inquirer also need not run for election to keep the seat. Therefore, at this time, the inquirer is neither a judicial candidate nor a judge. The Rules apply once he/she becomes a judge, i.e. when the term begins and he/she signs and files the oath of office (see Opinion 98-92).
Of course, the inquirer may wish to be mindful of the upcoming transition, so as to minimize unnecessary interference with his/her future judicial duties (see e.g. 22 NYCRR 100.3[E] [requiring disqualification “in a proceeding in which the judge's impartiality might reasonably be questioned”]). The inquirer may also wish to exercise caution when undertaking representations in the court where he/she will serve as a judge, as he/she will not be able to continue such representations on taking and filing the oath of office, even if the matters are transferred to another court (see e.g. Opinions 16-13; 13-02; 12-173; 97-60; Judiciary Law § 16).
(2) Extra-Judicial Activities: Public Display of a “Your Vote Counts” Banner
The inquirer also asks whether he/she may continue to display a large banner stating “Your vote counts in ___ County,” once he/she assumes judicial office. Although the banner does not identify any sponsor, it appears on a commercial building the judge owns. The banner’s overall appearance and effect resemble an “I Voted” sticker which voters sometimes receive, regardless of political affiliation, as they exit the polls. Nothing in the inquiry suggests the banner’s message is politically partisan in nature, otherwise controversial, or conveys any hidden or coded message.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must conduct her/his extra judicial activities so as to minimize the risk of conflict with judicial obligations, not cast reasonable doubt on the judge’s impartiality, and not detract from the dignity of judicial office (see 22 NYCRR 100.4[A]-). A judge must not engage directly or indirectly in political activities, except as expressly permitted by the Rules (see generally 22 NYCRR 100.5[A]). One very significant exception permits judges to exercise their right to vote in public elections (see 22 NYCRR 100.5[A][ii]; Opinion 09-180).
The banner’s message appears to be nothing more than an encouragement or reminder to the citizenry of their right to vote. It does not, on its face, convey any partisan political message, such as how that vote should be exercised. Nor is the Committee aware of any partisan message that would be conveyed by the slogan “Your Vote Counts” (cf. Opinion 10-128 [the slogan “Take Back America” is not “totally generic and ambiguous,” where it is being used by a political party nationwide “to signal discontent with certain political trends deplored by the party’s adherents and to promote the party’s candidates who promise to reverse those trends”]).
Where, as here, there is no apparent partisan political taint or controversy, a banner merely urging citizens to vote, placed on a commercial building the judge owns, is ethically permissible. Accordingly, a part-time attorney judge may publicly display on his/her office building a non-partisan banner stating “Your vote counts in ___ County.”
(3) Professional Relationship with an Attorney Tenant
Finally, the inquirer asks whether his/her attorney tenant may continue to appear in the court where he/she will preside, before his/her co-judge, once the inquirer assumes judicial office.1
The judge owns a building through his/her solely owned company and uses some private office space for his/her own law office. Other space is rented to several tenants, including the attorney. As permitted by their leases, tenants may take advantage of certain shared services for the building, including a common reception area, receptionist, conference room, and fax machine.2 The attorney tenant occasionally uses the common fax machine. Indeed, the tenant and the judge include the same fax number on their respective business stationery. The building receptionist occasionally answers phone calls on behalf of the attorney tenant, but only if the attorney tenant’s line is busy or not answered. All building signage lists the judge and the tenant as separate entities. The two maintain completely separate legal practices, have separate client bases and do not hold themselves out as partners or as in any other ongoing professional relationship. Nonetheless, a few times each year, the judge and attorney tenant cover court appearances for each other.
A part-time attorney judge may practice law (see 22 NYCRR 100.6[B]), subject to certain limitations. Among these, a judge may not permit her/his “partners or associates” to practice law before any judge of the court where he/she presides (see Judiciary Law § 471; 22 NYCRR 100.6[B]; Opinion 09-100).
While it is clear that the judge and the tenant are not formally associated in the practice of law, the question is whether they are deemed “associates” for the purposes of section 100.6(B)(3). This is a highly fact-specific question. As the Committee explained in Opinion 10-162 (citations omitted):
In prior opinions, the Committee has construed the term “associate” in Section 100.6(B)(3) more broadly than the traditional notion of a law firm associate, including sharing office space in some circumstances. However, in Opinion 09-100, the Committee concluded that where the landlord/tenant relationship between a part-time judge who practices law and another attorney involves only sharing a reception or waiting room and a conference room, with no other indicia of association between them, the judge may permit the attorney to practice [before other judges] in the judge’s court. The Committee noted that attorneys who are solo practitioners often enter into such office-sharing arrangements for purely economic reasons and maintain entirely separate law practices and that simply because one attorney who enters into such an arrangement is a part-time judge, the other lawyer’s ability to practice should not be limited by deeming him/her the judge’s “associate” for purposes of Section 100.6(B)(3).
Thus, a part-time judge and his/her attorney tenant who maintain separate legal practices are not deemed “associates” merely because they share a reception/waiting room and conference room (Opinions 10-162; 09-233; 09-100). Nor are a part-time judge and an attorney deemed “associates” merely because they share the same rental space, utilities and annual copier maintenance fee (see Opinion 14-194).
However, a part-time judge and his/her attorney tenant who otherwise maintain separate legal practices are “associates” for purposes of section 100.6(B)(3) where (a) they share the same fax machine and the common fax number appears on their respective business letterheads (see Opinions 97-60; 09-233);3 or (b) the attorney occasionally acts as “of counsel” for the judge (see Opinion 09-100); or (c) they share secretarial services (see Opinion 94-93/94-107 [modified in part, on other grounds, by Opinion 09-100, but reaffirmed in Opinions 14-91 and 11-89]).
Any of these three links between a judge and his/her attorney tenant is sufficient to create, at the very least, an appearance that they are associated in the practice of law. Incoming telephone calls or faxes to a law office can often include personal, and even legally privileged, information that a client might reasonably expect to be shared only with her/his attorney and the attorney’s associates. Covering court appearances for another attorney creates an even stronger appearance of association. Here, all three are present: the judge and tenant share a fax machine and include the same fax number on their respective letterheads (see Opinions 97-60; 09-233); they occasionally cover court appearances for each other, as if they were “of counsel” to each other (see Opinion 09-100); and they share secretarial services because the judge’s receptionist answers phone calls for the attorney tenant when the tenant’s line is busy or unattended (see Opinion 94-93/94-107).
Therefore, the judge may not permit his/her attorney tenant to practice before his/her co-judge unless all three of these connections are terminated (see 22 NYCRR 100.6[B]).
1 The judge already knows he/she is disqualified, subject to remittal, in cases when his/her tenant appears (see e.g. Opinion 10-162).
2 Although the leases also permit tenants to use a common phone and intercom system and scanner/copier, the judge and his/her attorney tenant have separate outside phone numbers, and the attorney does not use the common scanner/copier.
3 The Committee has clarified that “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 14-91 [no appearance of association where a “common fax header merely states ‘Law Office’”]; see also Opinion 11-89 [judge and tenant “use [their] own cover sheets” and “the transmitted documents do not bear any markings that would lead the recipient to conclude that the judge and the tenant are associated in the private practice of law”]).