March 9, 1995
Digest: A full-time judge who took office on January 1, 1995, may supervise the winding up of the affairs of a prior law practice by, inter alia, sending periodic bills to former clients and maintaining an escrow account for the processing of fees earned prior to January 1, 1995, but not currently payable.
Rule: Canon 5(f) of the Code of Judicial Conduct
A full-time judge, who practiced law until assuming judicial office on January1, 1995, has made several inquiries relating to the winding up of the law practice.
Canon 5 (f) of the Code of Judicial Conduct states that “a judge should not practice law.” However, a judge may collect fees owed to him or her in connection with legal services performed prior to his or her assumption of judicial office (Opinion 89-134, Vol IV) and may otherwise supervise the winding up of the affairs of the prior law practice (Opinions 94-18, Vol. XII, 90-203, Vol. VII).
In the opinion of this Committee, the inquiring judge, therefore, may “forward periodic bills to former clients for outstanding balances due for services rendered prior to January 1, 1994.” The judge also may maintain a business operating account for the purposes described in the inquiry; the words “law office of” may be manually stricken from the printed checks relative to this account (see Opinion 89-134, Vol. IV).
It is also the opinion of the Committee that the judge’s right to collect fees earned prior to January 1, 1995, encompasses the right to collect fees earned during such time, even though not payable for “one or more years.” Thus, the judge may continue to process settlement checks relative to cases settled prior to January 1, 1995, through his escrow account, consistent with the dictates of the Code of Professional Responsibility (see Opinion 88-118, Vol II).
The inquiring judge requests guidance with respect to “unresolved escrow moneys”,that is, escrow funds, the proper distribution of which is the subject of an ongoing dispute between the judge’s former client and the former client’s spouse, and the distribution of which may not occur except upon the written consent of both of these persons. In the opinion of this Committee the judge, with the written consent of the two parties (or their attorneys), may transfer the funds in question to another escrow agent. In the event consent is refused, the judge would be entitled to commence a pro se proceeding in the Supreme Court seeking a judgement approving the appointment of a substitute escrowee, providing the proposed escrowee, is a member of the bar in good standing and admitted to practice in New York (cf. Disciplinary Rules of the Code of Professional Ethics § 1200.45 [f-2]). The judge also would be entitled to commence an action as a stakeholder in order to resolve the dispute (CLPR 1006).
The judge also requests guidance with respect to his or her status as attorney of record in matters pending as of January 1,1995. As noted above, Canon 5(f) prohibits the judge from practicing law after that date. If one or more clients still refuse to consent to a change of attorneys, then the judge would be authorized to make a pro se motion for leave to withdraw as counsel, subject to the dictates of the Code of Professional Responsibility. The making of such an application would not constitute the practice of law.
The judge may continue to serve in the capacities described in the inquiry, which entail involvement in “civic and charitable activities that do not adversely reflect upon [his] impartiality”, in organizations that were not “conducted for the economic or political advantage of [their] members” (22 NYCRR 100.5[b]), and in organizations devoted to the “improvement of the law” (22 NYCRR 100.4[c]). The judge’s inquiry is not specific as to whether any of the offices mentioned involve the personal solicitation of funds, the listing of his or her name in connection with the solicitation of funds, or any other fundraising activities. The Committee advises that there are ethical restrictions in this regard. (see, 22 NYCRR 100.4[c]; 100.5[b] ). Also, the judge is advised not to participate in the ranking or evaluation of judicial candidates (see Opinions 91-72, Vol. VII, 88-100, Vol. II.)
The judge’s inquiry concerning the obligation to maintain the files of the former law practice is not, strictly speaking, within the realm of this Committee. However, we note that bookkeeping records must be maintained for seven years (DR 9-102 [D]), and that it has been recommended that all files be maintained for this period (Nassau County Bar Opinion). (93-23).
Other questions raised appear to be hypothetical and are not answered.