22 NYCRR 100.6(B)(1); 100.4(D)(1)(c).
Opinions 95-11(Vol. XIII); 94-20(Vol. XII);
91-108(Vol. VIII); 90-43(Vol. V);
89-08(Vol. III); 89-07(Vol. III).
A part-time judge, who also practices law, inquires whether it is permissible to continue sharing an office building with another attorney, who has been offered the position of public defender in the county in which the judge-attorney's court is located. This other attorney, who is currently an assistant public defender, is the owner of the building in which the judge-attorney's office is located, and has refrained from appearing in the inquirer's court pursuant to an opinion previously issued by this Committee.
The inquiring judge maintains a separate office in the building, including separate phone lines and a separate secretary. Nevertheless, as acknowledged by the judge, pursuant to Opinion 90-43(Vol. V) and other opinions, the prospective public defender would not be permitted to appear personally in the judge-attorney's court. At the present time, various other assistant public defenders do appear in the judge' court on a regular basis.
Section 100.4(D)(1)(c) of the Rules Governing Judicial Conduct states that "a judge shall not engage in financial or business dealings that ... involve the judge in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before the court on which the judge serves". This section is among those with which part-time judges are required to comply. 22 NYCRR 100.6(B)(1).
The Committee has previously stated that a full-time judge should not establish a landlord-tenant relationship with an attorney "likely to appear frequently before the judge". Opinion 91-108(Vol. VIII); see also, Opinion 95-11(Vol. XIII). In several opinions, the Committee had also addressed the consequences which follow when part-time judges, who are also practicing attorneys, enter into landlord-tenant relationships with individual lawyers or law firms. See, Opinion 94-20(Vol. XII) [members of law firm, which is landlord to judge-attorney, may not appear in judge-attorney's court]; Opinion 89-07(Vol. III) [attorney, who is tenant to judge-attorney, may not appear in judge-attorney's court]; Opinion 89-08(Vol. III) [members of law firm, which shares office space with judge-attorney may not appear in judge-attorney's court]). And, as stated above, the Committee has also advised that while a part-time judge-attorney may share office space with an assistant public defender, the latter would not be permitted to appear in the judge's court. Opinion 90-43(Vol. V).
The Committee is of the view that the building-sharing arrangement between the judge and the prospective public defender would have to cease in the event that the appointment to the office of public defender is accepted. As their titles imply, the assistant public defenders who routinely appear in the judge's court are agents of the public defender who, the Committee presumes, would be the attorney of record. Thus, in a legal sense, the public defender is appearing before the judge every time any one of his or her assistants appears. While it can not be said that any one particular assistant might be "likely to come before the court" so as to implicate section 100.4(D)(1)(c), it is evident that, through his or her subordinates, the public defender is "likely to appear frequently before the judge" Opinion 91-108(Vol. VIII).
For these reasons, the Committee concludes that the judge should not share office building space with the public defender whose assistants practice in the judge's court on a regular basis.