N.Y. Const. Art. 6, §20(b)(4);
Public Officers Law §§ 10, 30(1)(h);
22 NYCRR 100.4(G); Opinion 90-57 (Vol. V).
The inquirer informs the Committee that his/her nomination to the position of Court of Claims judge has been confirmed by the New York State Senate but that the oath of office has yet to be taken. The following question is asked:
My question is how much activity I can enter
into as an attorney to "close out" my practice
prior to taking my oath of office. For example,
may I attend a closing scheduled with a client
to take place before I take my oath of office?
Also, may I act as a referee in foreclosure to
sell property if said sale was scheduled before
my nomination and confirmation yet takes place
after those events?
Implicit in the question is the recognition that a full-time judge may not practice law. N.Y. Const. Art. 6, §20(b)(4); 22 NYCRR 100.4(G). Attention must therefore turn to a determination of when a person who is being appointed to full-time judicial office is to be deemed a judge for purposes of the prohibition against continuing in the practice of law. In Opinion 90-57 (Vol. V) inquiry had been made by a recent nominee to a full-time judicial office who was awaiting confirmation by the State Senate. The Committee advised that the inquirer was entitled to continue trying cases in all courts (including the one in which he or she expected to serve) "prior to confirmation of the appointment by the Senate."
It appears that the Committee implicitly regarded the assumption of judicial office as occurring simultaneously with confirmation. Upon further reflection, this does not seem to be the case. Rather, it is more precise and accurate to state that the practice of law is permitted until the oath of office is taken and filed, for that is when the confirmed nominee becomes entitled to exercise the authority of judicial office. This conclusion follows from sections 10 and 30 of the Public Officers Law.
Section 10 of the Public Officers Law states, in part, that "Every officer shall take and file the oath of office required by law, and every judicial officer of the unified court system, in addition, shall file a copy of said oath in the office of court administration before he shall be entitled to enter upon the discharge of his official duties." Public Officers Law §10 (emphasis added). Section 30(1)(h) of the Public Officers Law provides that a failure to file an official oath within thirty days after notice of appointment or within 30 days after commencement of the term of office, results in that office being deemed vacant.
A confirmed appointee thus has 30 days within which to take and file the oath of office, whereupon he or she then becomes entitled to exercise the powers of judicial office and becomes subject to the ethical limitations on extra-judicial activities, including the prohibition against practicing law. It therefore follows that the inquirer may continue to practice law until the oath of office is taken and filed, bearing in mind, of course, the risk attendant upon the failure to do so within the prescribed period. Upon taking and filing the oath of office, the appointee has become a judge and may no longer practice law. At that point there can be no further "closing out" to be done that requires the practice of law.