January 19, 1995
NOTE: This opinion is overruled, in part, to the extent it is inconsistent with Opinion 08-132, which introduced a distinction between matters assigned at the outset to a full-time judge and matters transferred after they were previously assigned to a lawyer-judge.
That is, Opinion 08-132 approves a procedure by which a court clerk assigns all matters of an attorney who is also part-time judge to a full-time judge at the outset, so that he/she never appears before another lawyer-judge.
The general rule remains, however, that matters already assigned to a lawyer-judge may not be transferred solely for the purpose of permitting another lawyer-judge or his/her partners to continue to appear as the attorney in the matter.
Digest: A recently appointed part-time judge, who is permitted to practice law may not seek reassignment to a lay judge of cases of clients presently pending before a lawyer-judge solely for the purpose of permitting the judge to remain an attorney in those cases.
Rules: 22 NYCRR 100.S(f), Opinion 90-23
A part-time acting village justice who practices law, asks the following question:
May an attorney who has been appointed an Acting Village Justice and has been representing clients in long standing litigated cases in Justice Courts where both Justices are attorneys, be permitted to handle those cases through to conclusion, by seeking an order of the County Court transferring those case to lay Judges?
The judge acknowledges that Opinion 90-23 on its face proscribes such a transfer, but asks whether the Committee is of the same opinion " if the case is ongoing when the attorney is elected or appointed to a judgeship." In particular, the judge notes the hardship to clients in having to secure new counsel in such circumstances.
In Opinion 90-23, attached hereto, the Committee held that a part-time judge may practice in another court in the county before a non-lawyer judge, even if another judge of that court is a lawyer-judge permitted to practice law. However, the Committee went on to hold that cases should not be reassigned to lay judges solely to permit another lawyer judge to remain as an attorney on the case.
In the view of the Committee, Opinion 90-23, is dispositive. The judge may not seek a transfer of pending cases to a lay judge. The dilemma of the judge's clients is common and virtually unavoidable whenever a practicing attorney assumes the bench. Moreover, if the inquiring judge has received compensation for services not yet rendered (and which the judge is presently forbidden to render), the judge should refund to the client the unearned portion of such fees.