September 14, 1993
Digest: A town justice who is permitted to practice law and the justice’s law partners may handle cases before any lay judge in the county except in the lawyer-judge’s own court, notwithstanding that at an earlier stage – but before the inquiring justice became a justice – those cases were in the court in which the inquiring justice serves.
Rules: 22 NYCRR §100.5(f); Judiciary Law §16; Advisory Committee on Judicial Ethics Opinion 88-108, Vol. 1.
A recently appointed town justice, who is an attorney, had five criminal cases pending in the justice court where the justice now presides. Prior to such appointment, the other presiding town justice had transferred those cases to other jurisdictions because of a conflict. Some of those cases are pending now before a non-attorney town justice.
The cases all originated in the town where the justice now sits. The arrests were made by the County Sheriff’s Department or New York State Police because the town has no local police force. None of the prosecutions involve the town in any way. The justice states that any of the cases transferred to a court presided over by an attorney-justice will be handled by other members of the justices’s law firm. The justice would like to handle the cases that are pending before the non-lawyer justices in the other jurisdictions.
Section 100.5(f) of the Rules of the Chief Administrator specifically permits part-time judges to practice law, and restricts that practice only before other part-time lawyer-judges in the same county. This section provides that a part-time lawyer-judge “shall not practice law in any court in the county in which his or her court is located which is presided over by a judge who is permitted to practice law.”
In addition, §16 of the Judiciary Law prohibits a judge from acting as an attorney in any matter originating in his or her own court. In this case, however, none of the matters being handled by the inquiring justice were within the jurisdiction of his court while he was a member of that court, all the matters having been transferred to other jurisdictions by the other town justice prior to the inquiring justice’s becoming a member of the courts.
The Committee is of the opinion that a part-time judge who is permitted to practice law may practice before any lay judge in the county, except, of course, in the lawyer-judge’s own court, but may not appear before any part-time judge in the county who is permitted to practice law. Therefore, we conclude that the inquiring town justice can handle the cases in the other jurisdictions now pending before the non-lawyer justices, even though at an earlier stage, before the town justice became a member of the court, those cases were pending in that court.
While we have not been asked for an opinion as to the ethical questions presented by the handling of some of the justice’s cases by members of the justice’s law firm which have been transferred to a court presided over by an attorney-justice, we bring to the justice’s attention that we have previously written.
In Opinion 87-10, Vol. I, dated January 28, 1988, the Committee outlined the practice of partners and associates of part-time judges permissible under 22 NYCRR 100.5(f). Partners or associates of a part-time judge may not practice law in that judge’s court, but may do so in a court of another town, village or city, presided over by a judge who is permitted to practice law.