March 11, 1999
A part-time Town Justice who is a lawyer, may not represent the owner of
real property in a proceeding in the Supreme Court, the purpose of which
proceeding is to stay an action originating and pending in the judge's
Judiciary Law §16; 22 NYCRR 100.6(B)(2);
Opinion 88-17a (Vol. I);
Matter of Bruhn (N.Y. Commission on Judicial
Conduct, December 24, 1987).
A part-time Town Justice who is authorized to practice law, has been asked to represent the owner of real property in a proceeding in Supreme Court. Five years earlier, the prior owner of the real property commenced an action in the justice's court. The action was assigned to the inquiring judge. The action was withdrawn by the prior owner, re-commenced shortly thereafter and settled without this judge's personal involvement.
In 1998, the current owner of the real property commenced a landlord/tenant action against the same tenants in the judge's court. The inquiring judge's co-judge was handling the matter when an action was commenced in the Supreme Court enjoining proceedings in the Justice Court. The inquiring judge has been retained to represent the current owner in the Supreme Court action and in related arbitrations.
The judge asks if the very tenuous contacts as a judge in the 1994 proceeding against the current tenants created any disqualification concerns regarding the Supreme Court matter currently pending.
We believe that the judge's concern about the 1994 judicial contacts involving a party to the present action misses the point in issue. For what is of prime significance is section 16 of the Judiciary Law which provides that "A judge shall not practice or act as an attorney or counselor in a court of which he is, or is entitled to act as a member, or in an action, claim, matter, motion or proceeding originating in that court." Citing a determination of the State Commission on Judicial Conduct, this Committee in Opinion 88-17a (Vol. I) concluded that "originating" means any action originating in the court, whether or not the judge took any action in the matter while it was pending within that court. Matter of Bruhn (N.Y. Commission on Judicial Conduct, December 24, 1987).
The action currently pending in the Supreme Court clearly involves a matter which originated in the justice's court. The fact that the judge was not the judge involved in the matter while it was pending in the judge's court, does not matter. The mandate of Judiciary Law §16 is clear: the judge may not represent the party in the Supreme Court action. This does not mean that the judge may not represent the party in any arbitration that may be provided for in the leases.