Opinion 89-38

May 25, 1989


Topic:          Full-time judge completing legal work for an estate the judge represented before assuming judicial office.


Digest:         Full-time judge may not complete unfinished legal services performed for an estate before the judge assumed judicial office, although no court appearances are necessary and the remaining tasks are more ministerial than legal in nature.


Rules:          Code of Judicial Conduct, Canon 5(f); New York State Constitution, Article VI, §20(b)(4)


         A full-time judge asks whether it would be ethically permissible to complete the legal work the judge had begun while an attorney for an estate before the judge assumed judicial office. The judge states that the work remaining to be done to close out the estate can be performed evenings, requires no court appearances, and is primarily ministerial, rather than legal, in nature. The judge further discloses that the legal fees, which were court-approved and already received by the judge, were intended to cover these remaining services.

         Article VI, §20(b)(4) of the New York State Constitution and Canon 5(f) of the Code of Judicial Conduct absolutely prohibit judges from engaging in the practice of law. A reading of the Rules of the Chief Administrator of the Courts, 22 NYCRR Part 100, also makes it clear that the activities of full-time judges during their terms of office are significantly restricted. While it may perhaps involve a proportionate financial adjustment to return a portion of the fee, be inconvenient to have another lawyer assume responsibility for the file, and doubtlessly be inefficient for the remaining work to be performed by someone else, it unquestionably is required by the clear and unambiguous meaning of the above-cited constitutional and ethical provisions. This requirement does not excuse the judge from the obligation of turning over files to and cooperating with a new attorney and others administering the estate.


         After the Committee meeting of May 25, 1989, the Court of Appeals approved the removal of judge for various acts of misconduct, including the fact that the judge “continued to practice law after he became a judge and attempted to conceal this fact from both the clients and the Commission. The charges focused on three estates petitioner represented before taking office. In December 1983, petitioner knew that he could not complete the work on the estate matters before the end of the year; yet he did not turn his files over to the representatives of the estate, nor law practice.

* * * The evidence established that petitioner in fact did not transfer the cases to the lawyer who took over his practice, but instead attempted to complete the legal work himself. * * * Additionally, the evidence established that petitioner instructed one executrix to sign, but not date, an estate tax form which, after becoming a judge, petitioner signed as preparer and then backdated to make it appear that he had completed the work before taking office.: Matter of Intemann, ________N.Y.2d _______, June 6, 1989; NYLJ June 12, 1989, p. 27.