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For many full-time judges, the practice of law is proscribed by the New York State Constitution (art VI, § 20 [b][4]). Part 100 extends the prohibition to all full-time judges (22 NYCRR 100.4[G]). However, a full-time judge may nonetheless "appear pro se" and also "may, without compensation, give legal advice to a member of the judge's family" (22 NYCRR 100.4[G]).
Full-Time Judges and the Practice of Law
(22 NYCRR 100.4[G]; NY Const art VI, § 20[b][4].)
This section collects recent opinions concerning the prohibition on the practice of law by full-time judges and quasi-judicial officials, including issues related to winding down one's former law practice and the exception for providing uncompensated legal advice to members of the judge's family.
Winding Down
We have collected recent opinions in four common categories of issues full-time judges may encounter when winding down their law practice: Ministerial and Administrative Tasks | Financial Interests; Collecting Legal Fees | Former Clients | Law Office & Inventory
- For additional opinions addressing winding down issues, see also Winding Down - Opinion Digests, which includes opinions as early as 1989.
- For additional opinions addressing issues faced by new judges, see New Judges.
Winding Down - Ministerial and Administrative Tasks
Opinion 21-87 Preparing documents for a divorce—even if uncontested and pursuant to a separation agreement—initiates a new legal proceeding and does not qualify as a mere ministerial or administrative act.
Opinion 21-13 A new full-time judge may engage in activities designed to wind down their prior law practice and collect previously earned legal fees, including billing an assigned counsel program for services “as an attorney” and complying with the requirements of a state administrative agency to obtain payment on previously awarded legal fees.
Opinion 17-157 A judge who has recently assumed full-time judicial office may file a closing statement with OCA in an action and have releases signed and mailed; deposit the settlement check; distribute the client's portion of the settlement proceeds; and file a closing statement in an action.
Opinion 15-128 A full-time judge whose former law partner is temporarily unavailable for medical reasons may accept and deposit fees, issue checks to clients and the firm and pay expenses as necessary to wind up the law firm’s affairs, until the partner recovers or new counsel is hired, but may not use law firm letterhead after assuming judicial office.
Winding Down - Financial Interests; Collecting Legal Fees
Opinion 26-38 Under these circumstances, a full-time judge may assign to him/herself individually a lien for agreed-upon legal fees due to a professional corporation in which the judge was the sole shareholder and officer.
Opinion 25-04(B) A new full-time judge may use his/her attorney NYSCEF credentials to file final accounts for the judge’s prior guardianships and file affirmations of service for such accounts.
Opinion 24-110 A new full-time judge may engage in activities designed to wind down his/her prior professional corporation and collect previously earned legal fees. The judge may represent him/herself in negotiating a fee splitting or quantum meruit agreement with a successor law firm regarding legal fees earned prior to assuming the bench, although the fee agreement must be permissible under the Rules of Professional Conduct. Where the professional corporation's bank account remains open to pay expenses in winding down the practice, a check for the judge's share of legal fees may be made payable to the professional corporation.
Opinion 22-24(A) On the facts presented, a new full-time judge may continue to negotiate with their former law firm regarding the disposition of a limited liability company in which they both own a 50% interest, as long as negotiations are in good faith by both sides and the judge continues to take no active role in management of the building or operation of the business.
Opinion 22-15(A) (3) A new full-time judge may be reimbursed for expenses incurred before assuming the bench while handling a matter as an attorney.
Opinion 21-17 Where a new full-time judge was previously a law firm partner and took a loan from the firm’s 401(k) profit sharing plan, the judge may remain in the plan temporarily in order to pay back the loan and receive the plan’s annual employer matching contribution based on the judge’s prior legal work and earnings. The judge must continue to disqualify from matters involving the former firm and the judge’s former partners and associates during this period and for two years after the financial relationship completely terminates.
Opinion 20-204 (3) Provided the judge’s proposed share of anticipated legal fees was fully earned before assuming full-time judicial office and the fee arrangement is permissible under the Rules of Professional Conduct and governing law, a new judge may accept payment of such legal fees even if they are contingent and not payable for several years.
Opinion 19-148(B) (1) A judge may collect fees for legal work done before taking full-time judicial office, only if the fee arrangement is otherwise proper.
Opinion 18-22 (3) A new full-time judge who previously served as guardian ad litem in a federal case may appear pro se concerning his/her fees for work previously performed as guardian ad litem.
Opinion 17-157 A judge who has recently assumed full-time judicial office may file a closing statement with OCA in an action and have releases signed and mailed; deposit the settlement check; distribute the client's portion of the settlement proceeds; and file a closing statement in an action.
Opinion 15-128 A full-time judge whose former law partner is temporarily unavailable for medical reasons may accept and deposit fees, issue checks to clients and the firm and pay expenses as necessary to wind up the law firm’s affairs, until the partner recovers or new counsel is hired but may not use law firm letterhead after assuming judicial office.
Winding Down - Assisting or Advising Former Clients
Opinion 25-73 Where a case the judge had prosecuted before assuming the bench is now in post-conviction proceedings, the judge: (1) may provide a factual affidavit stating that the judge never suborned perjury and that the witness never gave the judge reason to question the validity of the prosecution; (2) may discuss his/her recollections and other historical information about the case with a successor assistant district attorney, but may not offer any legal or tactical advice; and (3) may testify as a fact witness in post-conviction proceedings, either voluntarily or pursuant to a subpoena.
Opinion 24-33 Where a full-time judge’s former client has contacted the judge to complain about the successor attorney, the judge may suggest the former client retain new counsel, but should not otherwise provide legal advice or assistance.
Opinion 22-190 A full-time judge whose former client has discharged initial successor counsel and retained entirely new counsel may meet with the new attorneys and the former client to discuss records relating to the former representation, but must not offer legal or tactical advice.
Opinion 21-87 A full-time judge may not prepare an uncontested divorce package for a former client for whom the judge had previously prepared a separation agreement while in private practice.
Opinion 18-22 A new full-time judge who previously served as guardian ad litem in a federal case may (1) voluntarily provide a factual statement or affidavit about his/her former service as guardian ad litem and (2) respond to the federal judge’s questions about whether a new guardian ad litem should be appointed.
Opinion 17-175 A full-time judge who has advised a former client that he/she (a) can no longer practice law and (b) has already personally turned over the entire trial file to the former client, need not take any further action in response to the former client's threat to report the judge for allegedly not returning the trial file.
Winding Down - Law Office & Inventory
Opinion 23-149 A new full-time judge may retain the lease of the office previously used for the judge's solo legal practice, where the lease is in the name of the judge and not the law firm under which the judge was doing business.
Opinion 22-119 (1) A new full-time judge may liquidate the remaining inventory from a prior business activity on the judge's personal eBay account. The aggregate profit from any such sales in excess of $150 over the course of a calendar year must be reported as compensation for an extra-judicial activity under Section 100.4(H)(2). See AO-347 (PDF) rule change.
Opinion 22-15(A) A new full-time judge may (1) maintain a mailbox at their prior office address and (2) dispose of wills prepared while an attorney, as permitted by law.
Opinion 20-204 (1) On assuming full-time judicial office, a new judge must arrange to have his/her name removed from the glass of the shared suite in which the judge previously practiced law.
Opinion 12-190 After assuming the bench a new judge may continue to use their old law office e-mail address for personal matters, as discussed in Opinion 10-52.
Opinion 10-52 (2) A judge may continue to use an email address created when the judge was an attorney for personal matters.
Pro Se Exception
- “A full-time judge shall not practice law. Notwithstanding this prohibition, a judge may act pro se….” 22 NYCRR 100.4(G).
- For additional opinions addressing the exception permitting a judge to appear pro se, see Judge as Litigant (Pro Se etc.).
Opinion 24-110 A new full-time judge may represent him/herself in negotiating a fee splitting or quantum meruit agreement with a successor law firm regarding legal fees earned prior to assuming the bench, although the fee agreement must be permissible under the Rules of Professional Conduct.
Opinion 18-22 (3) A new full-time judge who previously served as guardian ad litem in a federal case may appear pro se concerning his/her fees for work previously performed as guardian ad litem.
Opinion 17-72 A full-time judge may proceed pro se in a real estate case in which the judge and his/her siblings are named defendants, but may not interpose an answer on the siblings’ behalf.
cf. Opinion 13-112 A town justice may bring a summary proceeding on his/her own behalf in village court, even if the village justice is also the judge-litigant’s co-judge in town court.
Opinion 09-12 A full-time judge who owns a condominium unit may act pro se to assert his/her personal rights as an individual owner in an action against the condominium board, but may not lead or advise the other condominium owners in making litigation decisions or give advice to legal counsel hired to represent a group of condominium owners in the dispute against the condominium board.
Advising Family Exception; Does NOT Extend to Friends
- “A full-time judge shall not practice law. Notwithstanding this prohibition, a judge … may, without compensation, give legal advice to a member of the judge’s family.” 22 NYCRR 100.4(G).
Opinion 26-51 A full-time judge may not serve as a “sounding board” on legal and ethical issues for a lawyer friend in another state.
Opinion 23-88 (1) A full-time judge who is, along with their siblings, a beneficiary of their parent’s estate may (a) assist the sibling who is serving as executor in selecting an attorney for the estate; (b) review documents relating to the estate and the probate proceedings; (c) discuss the estate and the proceedings with the other sibling beneficiaries; and (d) provide free legal advice to their siblings, including the executor, regarding the estate and the proceedings. However, the judge may not represent their siblings or the estate, nor participate in meetings with estate counsel.
Opinion 20-18 A full-time judge may personally appeal the denial of claims for health insurance coverage for his/her dependent child and may seek reversal of charges imposed by the child’s college related to the claims.
Opinion 19-85 Although a full-time judge may provide informal, uncompensated legal advice to his/her second-degree relative behind the scenes, he/she may not be included among those permitted, by court order, to review the relative’s litigation opponent’s confidential financial information.
Opinion 18-120 A full-time judge may provide informal, uncompensated legal advice to adult relatives involved in pending or impending civil or criminal proceedings, but may not participate in discussions with their retained counsel, as that constitutes the prohibited practice of law. To avoid even the appearance of impropriety, the judge must not attend meetings with counsel.
Opinion 17-72 A full-time judge may proceed pro se in a real estate case in which the judge and his/her siblings are named defendants, but may not interpose an answer on the siblings’ behalf.
Opinion 13-113 Under the circumstances presented, where the parties are unusually close friends whom the judge has known and treated as family for many decades, the judge may provide them with uncompensated legal advice outside the courtroom.
Opinion 11-55 A full-time judge may provide informal, uncompensated legal advice and assistance to his/her spouse in the selection of, and consultation with, counsel to represent the spouse in a proposed class action or other proceeding against the spouse's employer.
Teaching vs Legal Advice
Opinion 22-170 A full-time judge may write and teach on legal topics such as no-fault insurance arbitration but may not respond to private inquiries from no-fault insurance arbitrators on specific cases.
Opinion 19-29 (1) A full-time judge may not provide individualized assistance and guidance to his/her fellow congregants in completing their health care directives but may give a general lecture on the subject.
Opinion 17-148 A full-time judge may not give free legal advice to union members at a union-sponsored event but may lecture non-lawyer union members on general legal topics at a union-sponsored event.
Opinion 13-116 A Housing Court judge may speak at a meeting of a property owners’ organization about court procedures in landlord-tenant matters but must not discuss pending or impending cases; must not provide trial strategy or legal advice; and must otherwise ensure that his/her presentation does not compromise his/her apparent or actual impartiality and does not manifest a predisposition to decide a particular type or class of case a certain way.
Opinion 11-119 A full-time judge who is a member of a homeowners’ association may not write an article for the association’s newsletter advising members of their legal obligation to obtain a specific type of insurance for their home pursuant to the offering plan and the association’s rules.
Opinion 09-12 A full-time judge who owns a condominium unit may act pro se to assert his/her personal rights as an individual owner in an action against the condominium board, but may not lead or advise the other condominium owners in making litigation decisions or give advice to legal counsel hired to represent a group of condominium owners in the dispute against the condominium board.
Pro Bono Legal Services; Uncompensated Legal Advice as a Public Service
- Caution: There is no public service or pro bono exception in the rules, and the Committee has declined to create one.
Opinion 26-51 A full-time judge may not serve as a “sounding board” on legal and ethical issues for a lawyer friend in another state.
Opinion 23-64 A full-time judge may not participate in a local bar association's phone bank event where members of the public call in with legal questions.
Opinion 22-91 A full-time judge or quasi-judicial may not work on an amicus brief that a bar association will file in a high-profile federal appeal.
Opinion 19-121 A court attorney-referee may not volunteer with a local bar association group by providing pro bono legal services in another jurisdiction.
Opinion 17-148 A full-time judge may not give free legal advice to union members at a union-sponsored event but may lecture non-lawyer union members on general legal topics at a union-sponsored event.
Opinion 11-119 A full-time judge who is a member of a homeowners’ association may not write an article for the association’s newsletter advising members of their legal obligation to obtain a specific type of insurance for their home pursuant to the offering plan and the association’s rules.
Associations and Organizations – Non-Legal Advisor
- A judge “may serve as [a] non-legal advisor of an organization or governmental agency devoted to the improvement of the law, the legal system or the administration of justice or of an educational, religious, charitable, cultural, fraternal or civic organization not conducted for profit,” subject to certain limitations. 22 NYCRR 100.4(C)(3).
Opinion 25-108 (2) A full-time judge may not serve in the role of Judge Advocate for a local American Legion post.
Opinion 21-166 Although a full-time judge may serve on the board of trustees of a not-for-profit private school, the judge (1) may not serve on the board’s audit/risk committee and (2) may not solicit a legal opinion from an attorney on behalf of the board.
Opinion 11-143 A full-time judge may serve on the Bylaws Committee of a not-for-profit athletic club, provided that the club’s outside counsel handles legal matters for the club and further provided that the judge will not give legal advice or engage in decisions likely to lead to litigation.
Opinion 11-119 A full-time judge who is a member of a homeowners’ association may not write an article for the association’s newsletter advising members of their legal obligation to obtain a specific type of insurance for their home pursuant to the offering plan and the association’s rules.
Opinion 09-12 A full-time judge who owns a condominium unit may act pro se to assert his/her personal rights as an individual owner in an action against the condominium board, but may not lead or advise the other condominium owners in making litigation decisions or give advice to legal counsel hired to represent a group of condominium owners in the dispute against the condominium board.
Miscellaneous
Opinion 26-51 A full-time judge may not serve as a “sounding board” on legal and ethical issues for a lawyer friend in another state.
Opinion 25-73 Where a case the judge had prosecuted before assuming the bench is now in post-conviction proceedings, the judge: (1) may provide a factual affidavit stating that the judge never suborned perjury and that the witness never gave the judge reason to question the validity of the prosecution; (2) may discuss his/her recollections and other historical information about the case with a successor assistant district attorney, but may not offer any legal or tactical advice; and (3) may testify as a fact witness in post-conviction proceedings, either voluntarily or pursuant to a subpoena.
Opinion 20-175 A full-time quasi-judicial employee may not accept part-time employment with a private agency doing remote legal document review.
Opinion 15-200 Whether a full-time judge may serve in the U.S. Army Reserve Judge Advocate General Corps raises legal questions the Committee may not address.
Opinion 13-08 A full-time judge may not agree to be credited as an author of an appellate brief, even though the judge represented the defendant just prior to assuming the bench and had briefed six points raised on appeal before another attorney assumed the representation.