June 18, 1999
NOTE: The Chief Judge’s rules limiting outside practice of law by full-time nonjudicial court employees now appear at 22 NYCRR 50.6(a)-(c). For guidance on Part 50 (formerly Part 25), court personnel may consult the Office of Court Administration’s Nonjudicial Ethics Helpline (888-283-8442).
Digest: A Family Court hearing examiner may own stock in and be an officer of a family-owned corporation in which the hearing examiner and his/her spouse are the sole shareholders, but may not appear in any court on behalf of the corporation.
Rule: 22 NYCRR 25.40; 100.4(D)(2); 100.4(D)(3)(b); 100.4(G); 100.6(A); Opinions 95-31 (Vol. XIII); 95-97 (Vol. XIII); 96-97 (Vol. XIV); 97-03 (Vol. XV); 99-12.
A Family Court hearing examiner asks if it is permissible to be a shareholder and officer of a closely held corporation in which the hearing examiner and his/her spouse are the sole shareholders. The hearing examiner also inquires as to the appropriateness of appearing in court as an attorney on behalf of the corporation.
At the outset we note that as quasi-judicial officials, hearing examiners are required to comply with Rules Governing Judicial Conduct "in the performance of their judicial functions and otherwise shall so far as practical and appropriate use such rules as guides to their conduct." 22 NYCRR 100.6(A). See e.g., Opinions 97-03 (Vol. XV); 96-97 (Vol. XIV); 95-97 (Vol. XIII); 95-31 (Vol. XIII).
The Rules Governing Judicial Conduct that are applicable in this instance are sections 100.4(D)(2) and (3)(b) and 100.4(G). As provided for therein, a judge "may hold and manage investments of the judge and members of the judge's family, including real estate" (22 NYCRR 100.4[D]), and "may manage and participate in a business entity engaged solely in investment of the financial resources of the judge or members of the judge's family." 22 NYCRR 100.4(D)(3)(b); Opinion 99-12. But a full-time judge may not practice law. 22 NYCRR 100.4(G).
Applying those provisions, and based on the facts presented, the Committee concludes that the activity involved falls within permissible areas of business activity provided for in sections 100.4(D)(2) and 100.4(D)(3)(b). Thus, the inquirer may serve as an officer of this particular two-person family corporation unless and until a non-family member becomes a shareholder. (We also note that the Rules appear to contain no restrictions on a judge owning shares of stock in any corporation.)
However, as to representing the corporation in court, even for purposes of obtaining an adjournment, the Committee is of the opinion that this would constitute the practice of law and is therefore prohibited under section 100.4(G) of the Rules. Also, we call the inquirer's attention to section 25.40 of the Rules of the Chief Judge pertaining to the general prohibition on the practice of law by full-time employees of the Unified Court System.