June 13, 1997
A part-time judge may not receive a fee for referred cases which originated
in the judge's court, may not sit on cases which are presented by an associate
of a co-justice and may not preside over matters in which the judge referred
any of the litigants to the attorney involved or recommended the attorney
to the litigant.
22 NYCRR 100.6 (B)(3);
Opinions 94-50 (Vol. XII); 97-18.
A part-time judge inquires whether attorneys to whom the judge has referred clients may appear before a co-justice who is also part-time. The inquiry also raises several questions regarding referral fees to part-time judges and appearance by attorneys to whom cases have been referred.
Insofar as the judge inquires regarding the relationship of the inquiring judge's co-justice to an attorney who appears before the inquiring judge, section 100.6 (B) (3) of the Rules Governing Judicial Conduct (22 NYCRR 100.6(B)(3)) states that a part-time judge: " shall not permit the practice of law in his/her court by the partners or associates of another judge of the same court who is permitted to practice law ..."
In this situation, the letterheads of the attorney and the co-justice include the same fax number and the attorney is a tenant in a building owned by the co-justice. Therefore, there is at the least an appearance of association which would invoke the prohibition in Rule 100.6(B)(3). (See Opinions 94-93; 94-107).
It is not improper for a judge to recommend a private practicing attorney to a friend. Opinion 93-89. However this committee suggests whenever a judge is asked to recommend, and is willing to recommend an attorney to any other individuals, the judge should consider referring the individual to the local bar's attorney referral service or should recommend not less than three attorneys for consideration.
In situations where the judge has recommended attorneys or referred potential clients to attorneys and is not receiving any fee, the judge may not preside over the matter. Opinion 93-89.
In Opinion 88-108 this committee determined that a judge may not receive any fee, directly or indirectly, in any matter which originated or is in the judge's court. Thus, the inquiring judge is precluded from receiving any recompense on the cases which the judge has referred to other counsel which remain on the court calendar.