March 10, 1994
MODIFIED BY OPINION 07-14
THIS OPINION HAS BEEN MODIFIED BY OPINION 09-100 TO THE EXTENT THAT IT SUGGESTS THAT A MERE TENANCY OR OFFICE-SHARING AGREEMENT, WITHOUT MORE, MAKES AN ATTORNEY THE "ASSOCIATE" OF A PART-TIME JUDGE UNDER RULE 100.6(B)(3). PLEASE CONSULT OPINION 09-100 BEFORE RELYING ON THIS OPINION.
Digest: A part-time judge who is a practicing attorney, by merely ceasing to be employed by a firm, having the judge’s name removed from the firm letterhead, and renting office space from the firm, does not change the judge’s business relationship with the firm and therefore the law firm may not appear in the judge’s court, either before the judge or an acting judge.
Rules: 22 NYCRR 100.5(f); Opinions 90-43; 89-160; 89-07; 88-38.
A part-time judge, who is a lawyer associated with a law firm in the community wherein the court is located, does not permit members of the law firm to practice in that court. But the judge inquires whether , if the judge terminates employment with the firm and merely rents office space from the owner of the firm, and removes his/her name from the firm’s letterhead, the members of that firm would be permitted to practice in the judge’s court, or if the firm would be permitted to practice before the acting judge in the same court.
Section 100.5(f) of the Rules of the Chief Administrator of the Courts provides in relevant part as follows:
(f) Practice of Law:...No judge who is permitted to practice law shall permit his or her partners or associates to practice law in the court in which he or she is a judge. No judge who is permitted to practice law shall permit the practice of law in his or her court by the law partners or associates of another judge of the same court who is permitted to practice law.
From the submission, it appears that there would be a minimal change in the judge’s legal arrangement, namely a cessation of employment with the firm, a removal of the judge’s name from the firm letterhead, and at tenancy between the firm and the judge. But this would not alter the public perception that the judge remains associated in the practice of law with that firm.
Under the proposed change to an office space-sharing arrangement, the judge and the members of the firm would continue to have a business relationship, which is equivalent at least in terms of public perception to the continuation of an association with the firm and, therefore, pursuant to the applicable rule, since the law office association would continue, it disqualifies the judge, or any judge of the same court from presiding over any matter in which the members of the firm appear. See Opinion 89-07 (Vol. III). The situation would be different if, as the judge suggests, the judge does not continue any association with the firm and seeks office quarters elsewhere.