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Note: This page focuses on recent opinions addressing questions about providing legal advice and engaging in the practice of law. (While some opinions may go as far back as 2009, we have not made any effort to gather opinions issued in 1987-2008.)
Practice of Law
(22 NYCRR 100.6[B]; 100.4[G]; NY Const art VI, § 20[b][4].)
Full-time judges (separate page) may not practice law (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]). It should be noted that for certain full-time judges, this is a constitutional prohibition (NY Const art VI, § 20 [b][4]) as well as an ethical one.
Part-time judges are not subject to Section 100.4(G) or the constitutional prohibition, but both the Judiciary Law and Part 100 impose limitations upon their practice of law (see e.g. 22 NYCRR 100.6[B]; Judiciary Law §§ 16-17, 471).
Judicial Hearing Officers (JHOs) may practice law subject to Part 100 and Part 122 as applicable.
Part-Time Judges, JHOs, and the Practice of Law
(22 NYCRR 100.6[B][2]-[5]; 122.10; Judiciary Law §§16-17, 471)
This section collects recent opinions concerning the practice of law by part-time attorney judges, including practice limitations on part-time judges and their partners or associates; determining whether an attorney who shares office space or services with a part-time judge should be treated as an "associate"; compatibility of employment as a government attorney; and advertising the judge's law practice.
For disqualification issues, see Conflicts; Disqualification
Employment as a Government Attorney
- Caution: Watch out for prosecutorial or quasi-prosecutorial duties, which are forbidden in all jurisdictions. In some instances, the likelihood of conflicts may be diminished if the employment is in another county or municipality.
Organization: State/Federal | County-Level | City, Town, or Village
State or Federal Government
- For employment as a law clerk or court attorney, see Dual Employment within the Judiciary.
Opinion 26-21 A part-time judge may not maintain outside employment as an assistant attorney general with the Extreme Risk Protection Order Unit of the Attorney General’s office.
Opinion 22-35 A part-time judge may not serve as an assistant attorney general handling petitions for civil management of recidivist sex offenders under the Sex Offender Management and Treatment Act.
Opinion 20-123 A town justice may also work as a legal assistant at the appeals and opinions bureau of the attorney general’s office.
Opinion 20-28 A part-time lawyer judge may not serve as part-time assistant counsel for the Division of Criminal Justice Services.
Opinion 19-40 A part-time lawyer judge may concurrently serve as in-house counsel to the state’s education department, where he/she will research and draft opinions for the education commissioner in response to appeals from local school board decisions and licensing determinations.
Opinion 16-167 A town justice may not simultaneously serve as a federal prosecutor.
County-Level Government
Opinion 24-105 A part-time justice may accept employment as an assistant public defender in another county and appear in family court, but must not preside in any matter where another attorney from the same public defender’s office appears.
Opinion 23-201 A part-time judge who serves as part-time counsel to a county legislature, representing the entire legislative body, may not ordinarily attend or participate in any caucus meetings. However, the judge may enter such meetings on an issue-by-issue basis to provide a legal opinion on a legal or procedural issue, provided the judge's activities are clearly identifiable as those of an attorney representing a client and not as partisan political activity.
Opinion 23-130 (1) Subject to certain limitations, a part-time lawyer judge may serve as an assistant county attorney in the General Legal Services division, providing legal advice and services to the county clerk, to the board of elections, and on insurance matters, public health matters, purchasing, and real estate transactions. (2) The judge may not handle prosecutorial or quasi-prosecutorial matters; may not represent the public safety and communications departments, district attorney, public defender, conflict defender, assigned counsel program, sheriff’s office, probation department, first responders, crime lab, or mental health department including Kendra’s Law proceedings; and may not represent the health department with respect to adolescent tobacco law enforcement and health code violations.
Opinion 23-109 A part-time judge may serve as special counsel for the County Attorney’s office, where the position includes no criminal prosecutorial duties and would be insulated from all matters involving the district attorney, public defender, conflict defender, and county sheriff in the judge’s own county.
Opinion 23-13 A part-time town justice may serve as a part-time assistant conflict defender in the county in which the judge's court is located.
Opinion 21-148 A part-time city judge may simultaneously serve as an assistant county attorney handling child welfare matters, provided the judge does not handle or supervise juvenile delinquency, PINS, or other prosecutorial matters, and also provided the position does not result in frequent disqualifications.
Opinion 19-160 A town justice may also work as a part-time, nonsupervisory assistant county attorney in the same county, provided he/she has no prosecutorial or quasi-prosecutorial duties and is fully insulated from all matters involving the district attorney’s office and the sheriff’s office.
Opinion 19-56 A part-time judge may serve as a Department of Social Services attorney in the same county and handle neglect proceedings in Family Court. However, if the DSS role requires numerous recusals as judge, or becomes involved in prosecuting JD or PINS cases, then the judge must choose between the positions.
Opinion 18-50 A part-time judge may not simultaneously serve as an assistant county attorney, where his/her specific responsibilities involve representation of the district attorney’s office, the public defender’s office and the sheriff’s department, all of whom regularly appear in the judge’s court.
Opinion 17-183 A part-time judge may not continue to serve as a deputy county attorney in Family Court if his/her responsibilities would include prosecuting juvenile delinquency matters.
Opinion 17-172 A part-time town or village justice may serve as the County Attorney or an Assistant County Attorney within the same county where he/she presides, provided neither the judge nor any attorney under the judge’s supervision has any prosecutorial duties.
Opinion 17-62 A part-time judge may accept employment as counsel to the county legislature, provided (1) his/her duties are clearly identifiable as those of an attorney representing a client and not as partisan political activity and (2) he/she is authorized to interact directly with all county legislators rather than service limited to legislators of a particular party and/or their constituents.
Opinion 17-46 A part-time judge may also serve as head of a county agency responsible for enforcing a particular county law, where the agency is the licensing authority for an industry and has authority to commence civil administrative proceedings but (i) is unlikely to be involved directly or indirectly in any cases in the judge's court, (ii) has no authority to prosecute legal or criminal proceedings in any court, and (iii) has no police powers or functions.
Opinion 17-45 A town justice may not continue to serve as County Attorney in the same county where he/she presides because he/she would have supervisory authority over the assistant and deputy attorneys who have prosecutorial responsibilities.
Opinion 16-137 A part-time judge may accept employment as a salaried conflict defender with the county, and as such may accept appointments from full-time judges and non-lawyer part-time judges before whom he/she is otherwise permitted to appear. However, the judge may not accept appointments from, nor appear before, any part-time judge within the county who is permitted to practice law or any judge within the judge’s own court.
Opinion 16-32 A part-time city court judge who presides over arraignments and other criminal cases should not serve as sheriff’s office part-time in-house counsel.
Opinion 15-09 A part-time City Court judge may concurrently serve in the non-supervisory position of full-time deputy county attorney, provided he/she is not required to perform quasi-prosecutorial duties, such as handling juvenile delinquency and persons-in-need-of-supervision cases.
Opinion 14-136 A part-time judge may not accept employment as a staff attorney with Legal Aid in the same county where the judge presides, where the proposed employment would unduly disrupt court operations.
Opinion 13-98 Under the circumstances presented, a part-time judge may accept paid employment as an assistant staff counsel to the Minority Conference of a county legislature, provided that (1) his/her actions are clearly identifiable as those of an attorney representing a client and not as partisan political activity; (2) he/she interacts directly with Minority Counsel in the performance of his/her duties, rather than with individual legislators or their constituents; and (3) he/she does not attend legislative sessions or Minority Caucuses or other political gatherings.
Opinion 10-173 A part-time town justice who is permitted to practice law may represent a county in an action regarding conditions at the county’s detention facilities when the town justice presides in a town located in the same county.
Opinion 10-105 A part-time justice may also serve as a full or part-time county attorney or assistant county attorney provided the non-judicial duties do not involve quasi-prosecutorial matters and the judge is not required to recuse too frequently.
City, Town or Village Government
Opinion 25-08 A part-time village justice may also serve as a non-supervisory attorney for a city law department in another county, provided he/she will have no prosecutorial or quasi-prosecutorial duties.
Opinion 23-67 A part-time town justice may not serve as counsel to the town planning board in the town where the judge sits.
Opinion 22-135 A part-time judge, who also serves as a deputy town attorney for another town, may not in their role as town attorney assist the town police department in seeking Extreme Risk Protection Orders.
Opinion 21-63 Where a town justice serves as village attorney for a village which is wholly encompassed within the town where the justice presides, and the village retains a completely independent special prosecutor to handle all village court matters, the vast majority of which involve parking violations, the town justice may continue to serve as village attorney after the village court is abolished. However, the town justice may not preside in cases where the village is a party; if this results in frequent disqualifications, the justice must choose between the positions of town justice and village attorney.
Opinion 21-01 A town justice, who serves as village attorney for a village which is wholly encompassed within the town where the justice presides, may not continue as town justice and village attorney where the town court would be expected to hear all cases arising out of the village, including actions to enforce village zoning, parking and other local laws. The justice may not recuse from all village cases in order to retain both positions.
Opinion 19-02 A part-time town justice may serve as attorney of record to other villages and towns inside and outside his/her county, and appear on their behalf in Supreme Court such as Article 78 proceedings, FOIL matters, and civil trespass.
Opinion 17-36 A town justice may serve as the town attorney for another town in the same county, provided there will be no prosecutorial component to that town attorney position.
Opinion 15-205 (1) A part-time judge must not serve as Corporation Counsel if the judge personally, or any assistant or deputy corporation counsel under his/her supervision, will prosecute vehicle and traffic law charges, or any other alleged violations of law that involve peace officers. (2) The judge may serve as Corporation Counsel for a city in another county if he/she is completely separated from such prosecutorial responsibilities, for example if the city arranges for special counsel or the district attorney to prosecute such matters so that they are not under the control of the Corporation Counsel.
Opinion 14-28 A part-time judge may serve as counsel to a nearby town and, in such capacity, provide legal advice to the town board, attend town board meetings, and defend the town in tax certiorari proceedings brought in Supreme Court.
Opinion 13-180 A part-time town justice may serve as town attorney in a different town from the one where the judge presides, provided he/she is relieved of any prosecutorial responsibilities.
Opinion 09-235 (1) A town justice also may serve as town attorney for a different town, and may arraign defendants for that different town where neither town has a municipal police department, but receives law enforcement services from the New York State Police and the District Attorney serves as the prosecutor. (2) As town attorney, the town justice may not represent the town in any courts in the county before judges who are permitted to practice law.
Opinion 09-159 A town justice may accept a position as a part-time deputy corporation counsel in the same county, where the position would involve defense of negligence claims against the city in Supreme Court and federal court.
Assigned Counsel & Appointments
- For Part 36 appointment issues, see Serving as a Fiduciary; Receiving Court Appointments.
Opinion 23-66 A part-time judge may serve as administrator of the assigned counsel program in a different county from the county where the judge presides.
Opinion 22-193 (1) A part-time town justice may appear as assigned counsel in another county, or before non-lawyer judges or full-time judges in the same county, and may submit vouchers for assigned counsel work already completed.
Opinion 21-100 The Rules Governing Judicial Conduct do not preclude two part-time lawyer judges who preside in the same court from representing two potentially adverse parties in a proceeding before a full-time judge in another court.
Opinion 21-77 A village justice may not also serve as Assigned Counsel Administrator in the same county.
Opinion 20-172 A part-time attorney judge (1) may accept an 18-B assignment to appear before a full-time judge if the assignment does not involve an ethical or legal conflict but (2) may not represent a parent in a custody proceeding where recent or pending criminal proceeding(s) in the judge’s court brought by the other parent could affect a disposition in the custody proceeding.
Opinion 18-130 If the criteria of 22 NYCRR 36.1(b)(2)(I) are met, a full-time judge may allow a part-time judge to serve as a court-appointed guardian, and the part-time judge may so serve.
Opinion 18-129 A part-time lawyer judge who serves as an accessible magistrate must not accept appointment as attorney for the child in a case where he/she previously served as the arraigning judge but is not otherwise ethically barred from accepting appointments as attorney for the child in cases that originate in the youth part.
Opinion 18-81 A part-time town justice may not accept a part-time counsel position in which he/she would be responsible for improving the delivery of legal services to indigent clients in the judge’s county and would report to the administrator of the county’s assigned counsel program.
Opinion 17-141 Although a part-time judge may accept 18-B assignments, he/she may not serve as administrator of the county's 18-B plan, even if a bar association initially reviews the 18-B vouchers for irregularities.
Opinion 16-137 A part-time judge may accept employment as a salaried conflict defender with the county, and as such may accept appointments from full-time judges and non-lawyer part-time judges before whom he/she is otherwise permitted to appear. However, the judge may not accept appointments from, nor appear before, any part-time judge within the county who is permitted to practice law or any judge within the judge’s own court.
Opinion 12-183 A part-time lawyer/judge in a town, village, or city court may accept assignments from a full-time county court judge to represent prison inmates in their initial administrative appeals before the parole board.
Opinion 12-77 A town justice may serve as assigned counsel for the county court in the same county in which they preside.
Opinion 09-178 A town justice should not also serve as administrator of the county’s assigned counsel program or conflict defender’s office.
Client Limitations
- This section tries to collect recent prior opinions addressing particular categories of clients and/or representations that may (or may not) raise ethics issues.
Sub-Topics: Representing or Opposing a City, Town, or Village and/or its Officers or Boards | Representing Judges or Court Personnel; Advising on Justice Court Operational Issues | Representing Political Organizations or Candidates; Undertaking Election Compliance Work | Representing a Legislative Body | Representing Law Enforcement Officers or Associations | Representation Likely to Implicate Issues Intertwined with Prior Adjudication | Miscellaneous
Representing or Opposing a City, Town or Village and/or its Officers or Boards
Opinion 24-200 A part-time judge may represent a client in civil rights litigation in federal court against city police officers and municipal officials in another county.
Opinion 23-115 A part-time town justice may not remain "of counsel" to the law firm that represents the town planning board.
Opinion 22-169 A village justice who is a lawyer may represent the village mayor in providing legal advice and negotiations in the dissolution of the mayor's marriage.
Opinion 21-110 Where proceedings involving the town, its highway department, or the highway department's employees are very rare in the town court, a town justice may represent the town in collective bargaining negotiations with the union representing the town's highway department personnel. However, the judge must disqualify in all matters where the town is a party both for the duration of the representation and for two years after it completely ends.
Opinion 19-114 A part-time town justice may represent the town and a village contained within the town in federal court. However, he/she is then disqualified in matters where either client is a party. While the disqualification is subject to remittal, if the representation results in excessive disqualifications, the judge must choose between the two positions.
Opinion 19-02 A part-time town justice may serve as attorney of record to other villages and towns inside and outside his/her county, and appear on their behalf in Supreme Court such as Article 78 proceedings, FOIL matters, and civil trespass.
Opinion 12-182 A part-time judge presiding in a municipality may not consent to his/her law firm's proposed representation of claimants in an Article 78 proceeding against the municipality, where the outcome of the proceeding would directly affect the municipality's court facilities, particularly if the judge would share equally in the earned legal fee.
Opinion 12-134 A judge need not resign as town justice merely because the town retains the judge's firm to represent the town in a specific state or federal court action.
Opinion 10-149 A part-time judge who practices law may apply for certificates of occupancy and building permits on behalf of clients in the village where the judge presides where such application is ministerial in nature and does not involve an exercise of discretion by the building inspector.
Opinion 09-115 A part-time village justice's law firm may act as outside counsel for the village, where the village is named as a defendant in state or federal court.
Representing Judges or Court Personnel; Advising on Justice Court Operational Issues
Opinion 24-59 A part-time attorney judge who presides in a town court may represent a court officer assigned to a city court in the same county.
Opinion 18-137 A part-time judge may represent a judge who presides in a different court before the Commission on Judicial Conduct.
Opinion 16-72 A part-time justice, as counsel to an association of local government officials and employees, may advise individual members concerning local justice court operational issues, where such issues do not pertain to any pending cases, nor the court in which the judge presides.
Opinion 09-110 A part-time judge who practices law may represent another part-time judge who presides in a different court in a civil legal matter.
Representing Political Organizations or Candidates; Undertaking Election Compliance Work
Opinion 25-31 Provided the judge establishes an attorney-client relationship and is fairly compensated for the work, a part-time lawyer judge may provide legal services relating to compliance with Federal Election Commission (“FEC”) regulations, including (a) reviewing financial reports for 501(c)(4) organizations, super political action committee (“PAC”) organizations, and federal campaign committees, and (b) providing legal opinions and reviewing advertisements and solicitations by PACs and campaign committees. The judge should take care to avoid even the appearance of providing political advice or strategy.
Opinion 09-165 (1) A Judicial Hearing Officer is prohibited from serving either as chair or counsel to an Ethics Committee for a political party. (2) A Judicial Hearing Officer who is only considering a run for political or public office, but is not yet an announced candidate in his/her Window Period may not attend political events. (3) As a private attorney, a Judicial Hearing Officer may give legal and/or ethical advice to public officers, party officials and/or political party members so long as (A) he/she is formally retained so that an attorney-client relationship exists; (B) his/her actions are clearly identifiable as those of an attorney representing a client, and not as partisan political activity; and (C) he/she is fairly compensated for his/her legal services.
Representing a Legislative Body
Opinion 23-201 A part-time judge who serves as part-time counsel to a county legislature, representing the entire legislative body, may not ordinarily attend or participate in any caucus meetings. However, the judge may enter such meetings on an issue-by-issue basis to provide a legal opinion on a legal or procedural issue, provided the judge’s activities are clearly identifiable as those of an attorney representing a client and not as partisan political activity.
Opinion 17-62 A part-time judge may accept employment as counsel to the county legislature, provided (1) his/her duties are clearly identifiable as those of an attorney representing a client and not as partisan political activity and (2) he/she is authorized to interact directly with all county legislators rather than service limited to legislators of a particular party and/or their constituents.
Opinion 13-98 Under the circumstances presented, a part-time judge may accept paid employment as an assistant staff counsel to the Minority Conference of a county legislature, provided that (1) his/her actions are clearly identifiable as those of an attorney representing a client and not as partisan political activity; (2) he/she interacts directly with Minority Counsel in the performance of his/her duties, rather than with individual legislators or their constituents; and (3) he/she does not attend legislative sessions or Minority Caucuses or other political gatherings.
Representing or Opposing Law Enforcement Officers or Associations
Opinion 26-21 A part-time judge may not maintain outside employment as an assistant attorney general with the Extreme Risk Protection Order Unit of the Attorney General’s office.
Opinion 26-02 A part-time attorney judge may not represent the New York State Police Investigator’s Association or the local Legal Aid Society.
Opinion 25-192 On these facts, a part-time judge’s law firm may not represent a private client in a civil action against the District Attorney’s office that regularly appears in the judge’s court or a police department that regularly appears in the county’s Centralized Arraignment Part.
Opinion 24-196 A part-time judge may not permit his/her law firm to represent a Corrections Officers Benevolent Association in any county, even if the representation will be limited to contract negotiations or labor relations matters.
Opinion 21-143 A part-time attorney judge may not represent a police benevolent association, whether in a non-adjoining town in the same county or in a village in another county, as an appearance of impropriety would be created, based on a perception that the judge is too closely aligned with law enforcement interests.
Opinion 09-163 It is ethically permissible under the Rules for a part-time lawyer judge to represent family members of police officers employed by a police department that appears in the judge's court, but may have disclosure/disqualification obligations.
Opinion 09-53 A part-time lawyer judge or their law partner may represent individual local law enforcement officers unless the representation causes the judge to disqualify himself/herself so frequently that it interferes with the judge’s ability to properly perform judicial duties.
Representation Likely to Implicate Issues Intertwined with Prior Adjudication
Opinion 11-108 A judge may not act as a lawyer in a divorce proceeding against a defendant whom the judge previously arraigned on certain alleged sexual crimes that are likely to be raised in the context of a divorce and may not share in any fee resulting from such representation. Under the circumstances presented, in order to prevent the appearance that the judge’s personal knowledge of the defendant resulting from presiding over the arraignment is being used to the advantage of the defendant’s spouse in the divorce proceeding, the judge also should not permit his/her firm to undertake the representation.
Opinion 11-73 A part-time judge who practices law and previously presided over criminal charges against certain individuals arising from a particular incident, is prohibited from representing a different individual in a civil matter arising from the same incident.
Miscellaneous Client Limitations
Opinion 26-02 A part-time attorney judge may not represent the New York State Police Investigator’s Association or the local Legal Aid Society.
Opinion 25-192 On these facts, a part-time judge’s law firm may not represent a private client in a civil action against the District Attorney’s office that regularly appears in the judge’s court or a police department that regularly appears in the county’s Centralized Arraignment Part.
Opinion 25-138 Where a part-time judge’s law firm represents creditors against numerous judgment debtors: … (3) the propriety of undertaking client representations unrelated to matters originating in the town court is primarily a matter of attorney ethics.
Opinion 25-46 A part-time judge may volunteer with a not-for-profit organization to assist immigrant families in filling out standby guardianship, power of attorney, and health care proxy paperwork.
Opinion 25-31 Provided the judge establishes an attorney-client relationship and is fairly compensated for the work, a part-time lawyer judge may provide legal services relating to compliance with Federal Election Commission (“FEC”) regulations, including (a) reviewing financial reports for 501(c)(4) organizations, super political action committee (“PAC”) organizations, and federal campaign committees, and (b) providing legal opinions and reviewing advertisements and solicitations by PACs and campaign committees. The judge should take care to avoid even the appearance of providing political advice or strategy.
Opinion 18-163 A part-time lawyer judge may provide legal services to a New York State-approved medical marijuana corporation.
Opinion 13-14 A part-time judge may accept employment with a not-for-profit organization or a law firm to perform services including meeting with state and local governmental officials, providing the employer with legal and policy analysis of pending legislation, appearing at hearings before executive agencies and legislative bodies, and performing trainings, subject to certain limitations (see Opinion 10-54).
Opinion 12-92 Under the circumstances presented, a part-time attorney-judge may represent the board of directors of a large homeowners' association which is located within the geographic jurisdiction of the judge's court. The judge is disqualified, subject to remittal, when individual board members or the association itself appear before the judge, but not when individual homeowners or community residents appear before the judge.
Opinion 10-173 A part-time town justice who is permitted to practice law may represent a county in an action regarding conditions at the county’s detention facilities when the town justice presides in a town located in the same county.
Opinion 10-54 A part-time lawyer judge may accept employment with a law firm to appear before the State Legislature, the State Executive Branch, and local governments on behalf of various clients, subject to certain limitations.
Opinion 10-30 A part-time judge may continue to provide legal services to certain not-for-profit organizations which involve charitable and civic pursuits, provided they do not embroil the judge in “substantial public controversy.”
Practice Limitations – Matters Originating in One's Own Court
- This section includes opinions about the effect of a case being transferred to another court.
Opinion 22-12 A new town judge, who can no longer represent an existing client on a nearly completed matter that originated in the town court, may agree to pay the successor attorney a portion of the original retainer.
Opinion 20-172 A part-time attorney judge … may not represent a parent in a custody proceeding where recent or pending criminal proceeding(s) in the judge’s court brought by the other parent could affect a disposition in the custody proceeding.
Opinion 16-13 A newly appointed part-time attorney judge may not continue to represent a client on cases which not only originated in the judge’s court, but were previously handled by the inquiring judge’s predecessor on that court, and were transferred to another local court only after the inquiring judge assumed the bench.
Opinion 12-173 (1) A judge's law firm may not represent a client in a criminal case that originated in the judge's court, even if the matter is transferred to the Integrated Domestic Violence court. (2) A judge's law firm may not continue to represent a client in Family Court cases that are intertwined with a criminal case that originated in the judge's court, once all the intertwined cases are transferred to the Integrated Domestic Violence Court.
Opinion 10-82 A part-time lawyer judge may have a brief conversation with a friend and/or client who calls the judge during an arrest and suggest that the friend and/or client contact another attorney when the judge knows that he/she cannot represent the friend/client because the resulting case would likely be filed in the judge’s court.
Opinion 03-105 Neither a part-time judge who practices law, nor the judge’s law firm or any of its members may appear as attorneys in a matter that originated in the judge’s court.
Opinion 01-05 A part-time lawyer judge should not represent parties in a Family Court custody/visitation proceeding where there is a criminal proceeding pending in the judge's court which has been brought against the judge's client by the other parent and which involves allegations and issues that would be material in the Family Court proceeding.
Opinion 93-57 A town justice who is permitted to practice law and the justice’s law partners may handle cases before any lay judge in the county except in the lawyer-judge’s own court, notwithstanding that at an earlier stage – but before the inquiring justice became a justice – those cases were in the court in which the inquiring justice serves.
Opinion 88-50 An attorney-justice and the partners of the justice may not represent clients if the case originates in the justice’s court.
Practice Limitations – Appearing Before Another Part-Time Attorney Judge
- This section includes opinions about requesting assignment or transfer of a case to another judge or another court. Important: The Committee distinguishes between requesting assignment "at the outset" of a newly filed case and requesting transfer of a case after it has already been assigned to a judge.
Opinion 26-39 A part-time town or village justice who is also a managing attorney for a legal services provider (1) may directly supervise a subordinate attorney in matters before part-time attorney judges of other courts within the same county, only if such supervision takes place in private, without the involvement of the client, opposing parties or counsel, or the presiding court; and (2) may not participate in an internal training for the legal services provider if it will take place in the courtroom of a justice court.
Opinion 21-132 (3) Where all judges of a court in the same county are part-time lawyer judges, a practicing part-time lawyer judge may not represent a client before any judge of that court and may not ask for a non-attorney judge outside of that court to be assigned to the case.
Opinion 21-33 A new part-time judge may not request that the county court judge transfer all of their cases, which were pending in the court to which they were recently appointed as a part-time judge, to different jurisdictions.
Opinion 20-64 (1) Once a case has been initially assigned to a lawyer judge, it is not ethically permissible to request a transfer.
Opinion 16-13 A newly appointed part-time attorney judge may not continue to represent a client on cases which not only originated in the judge’s court, but were previously handled by the inquiring judge’s predecessor on that court, and were transferred to another local court only after the inquiring judge assumed the bench.
Opinion 14-57 A part-time lawyer judge may ask the clerk of a village justice court to assign all cases in which the judge represents a client to the non-lawyer acting village justice.
Opinion 12-171 A part-time attorney judge may not request the transfer of a client's case to another court in order to avoid the prohibition set forth in 22 NYCRR 100.6(B)(2).
Opinion 09-128 A part-time judge may not transfer all matters where the village is a party to his/her co-judge or another court solely for the purpose of permitting his/her law firm to continue serving as special counsel to the village and his/her associate to continue serving as village attorney.
Opinion 09-100 (2) The judge should not transfer the cases of an associate to another court solely for the purpose of allowing the associate to continue the representation.
Opinion 09-06 It would be permissible for a part-time lawyer/judge, representing a client in a court where there are some judges before whom the part-time lawyer judge may appear and others before whom the judge may not appear, to request that a case be assigned to the judge(s) in that court, before whom the part-time lawyer judge may appear, if the request is made before that matter has been assigned to a judge.
Opinion 08-210/09-01 Once a case is commenced, a judge may not transfer the case to another non-lawyer judge solely to allow a lawyer-judge to appear.
Practice Limitations – Partners & Associates
Note: Section 100.6(B)(3) appears to echo or reinforce the prohibitions in Judiciary Law 471.
- Under Section 100.6(B)(3), a part-time judge "shall not permit his or her partners or associates to practice law in the court in which he or she is a judge."
- In addition, a part-time judge "shall not permit the practice of law in his or her court by the law partners or associates of another judge of the same court who is permitted to practice law." Id.
- But a part-time judge "may permit the practice of law in his or her court by the partners or associates of a judge of a court in another town, village or city who is permitted to practice law." Id.
See also Who is considered an "associate"?
Opinion 26-39 A part-time town or village justice who is also a managing attorney for a legal services provider (1) may directly supervise a subordinate attorney in matters before part-time attorney judges of other courts within the same county, only if such supervision takes place in private, without the involvement of the client, opposing parties or counsel, or the presiding court; and (2) may not participate in an internal training for the legal services provider if it will take place in the courtroom of a justice court.
Opinion 25-199 A part-time judge may permit his/her law partners and associates to practice law in the county’s centralized arraignment part before other judges. If it becomes necessary to revisit any aspect of the criminal proceedings which took place in the centralized arraignment part, the judge and his/her co-judge are disqualified from presiding.
Opinion 23-115 A part-time town justice may not remain "of counsel" to the law firm that represents the town planning board.
Opinion 21-132 (4) A part-time lawyer judge must prohibit their partners and associates from appearing in the judge’s own court, but need not prohibit their partners and associates from appearing before the part-time lawyer judges of other courts in the same county.
Opinion 19-154 (2) A judge whose law partner is an assistant public defender must prohibit the law partner from appearing in his/her court before the judge or his/her co-judge.
Opinion 18-153 A part-time lawyer judge may not represent a private client before the board of assessment review in the same town where the judge presides, but the judge’s partners or associates may undertake the representation provided there is no other ethical impediment and the judge neither participates in the representation nor shares in the fee.
Opinion 17-180 A town justice whose law practice has absolutely no affiliation with the law practice of his/her first-degree relative (parent or child) need not prohibit the relative from appearing before other judges in the same court.
Opinion 16-143 (1) Where a part-time lawyer judge's law practice associate is representing a client in another court in the same county before another part-time lawyer judge, the judge may not personally participate in the representation by meeting with the client or discussing the case with opposing counsel, even if such activities will take place away from the courthouse. (2) The judge may nonetheless directly supervise a subordinate attorney who is representing the law practice's clients in such matters, provided such supervision takes place in private, without involvement of the client, opposing parties or counsel, or the court in which the matter is heard.
Opinion 14-82 A part-time judge may join a law firm, even though two of the judge’s prospective partners or associates also practice law part-time with a second law firm that provides indigent defense services in the same county where the judge presides, provided the attorneys (a) will not practice law in the judge’s court and (b) will not share fees earned for their indigent defense work with the judge’s prospective law firm.
Opinion 14-57 A part-time lawyer judge’s partners and/or associates may appear in court on the judge’s behalf before either a lawyer or a non-lawyer judge.
Opinion 14-53 An attorney who is a part-time town judge may practice law as partner of an attorney who is a part-time village prosecutor, subject to certain limitations.
Opinion 12-173 (3) Although a judge's associates may not appear before any judge of the judge's court, they are not barred from practicing in other courts and thus may appear before part-time judges in other courts who are permitted to practice law.
Opinion 12-134 A judge may continue to serve as town justice if the town retains the judge's firm to represent the town in a state or federal court action.
Opinion 11-150 A part-time judge who is permitted to practice law may not permit an attorney who is “of counsel” to the judge’s professional limited liability company law firm to appear before the judge or any co-judge of the court in which the judge presides but may permit the attorney to appear on behalf of the firm before the full and part-time judges of other courts in which the judge does not preside.
Opinion 10-126 When a judge is temporarily assigned to serve in a City Court pursuant to Section 107 of the Uniform City Court Act, the judge’s partners and associates may continue to appear before all other judges of the City Court, unless there is a reason other than their colleague’s temporary assignment to the City Court which would preclude them from doing so.
Opinion 10-104 A part-time lawyer judge’s law partner may prosecute traffic and code violations in a village court located within the town where the judge serves as town justice.
Opinion 10-94 (1) Where an attorney pays for space in an attorney town justice’s law office by performing legal work for the part-time justice’s law firm, and the said attorney town justice includes the attorney on the justice’s malpractice insurance coverage in exchange for a percentage of any fees the attorney earns, the attorney is the town justice’s associate and thus may not appear in the attorney town justice’s court either before him/her or his/her co-judge(s). (2) Absent any other disqualifying factors, an attorney town justice’s associate is not prohibited from appearing before the town zoning board or participating in other town administrative proceedings in the same town where the town justice presides. (3) An attorney who is an attorney town justice’s associate may appear on behalf of the justice’s clients or the attorney’s own clients in other justice courts in the same county where the town justice presides before both attorney and non-attorney justices.
Opinion 09-239 A judge may not permit his/her co-judge’s law practice associates to practice before the inquiring judge.
Opinion 09-149 The partners and associates of a part-time village justice and acting city court judge may appear in the entirely separate and distinct town court of the town in which the village court is located, but not in the village court or city court in which the judge presides. [NOTE: Modified in part by Opinion 10-126 and Section 100.6(B)(5), with respect to certain temporary assignments.]
Opinion 09-135 Are members of a part-time judge's law firm precluded from appearing in the City Court to which the judge has been temporarily assigned?
Opinion 09-83 (1) A part-time city court judge’s law partner may not appear before another judge in the same city court, even if he/she were to appear as a conflict defender before another city court judge.
Opinion 09-48 (6) A part-time lawyer judge may remain associated in the practice of law with an attorney who becomes a conflict defender in the same county but that attorney may not appear in the judge’s court, even before another judge. (7) In order for a part-time lawyer judge’s law partner to appear in the judge's court, either before the judge personally or before a co-judge, the judge and the law partner must sever or dissolve their legal partnership.
Opinion 08-210/09-01 A part-time town justice who is permitted to practice law may not practice law in any court on which he/she serves, but may practice law in another court located in the same county where he/she presides before a judge who is not permitted to practice law and in any court located outside the county where he/she presides before a judge who is permitted to practice law and a judge who is not permitted to practice law. The judge’s associate may practice law in any court located in the same county where the judge presides before a judge who is permitted to practice law and before a judge who is not permitted to practice law and may use law office stationery in connection with such appearances as long as it does not disclose the judge’s judicial status. Once a case is commenced, a judge may not transfer the case to another non-lawyer judge solely to allow a lawyer-judge to appear.
Who Is Considered an “Associate”?
Opinion 16-63 (3) A part-time attorney judge must prohibit his/her attorney tenant from practicing before any judge of his/her court if: they share a fax machine and fax number which is included in their respective stationery, or they cover court appearances for each other, or the judge’s receptionist answers phone calls for the tenant.
Opinion 11-150 A part-time judge who is permitted to practice law may not permit an attorney who is “of counsel” to the judge’s professional limited liability company law firm to appear before the judge or any co-judge of the court in which the judge presides but may permit the attorney to appear on behalf of the firm before the full and part-time judges of other courts in which the judge does not preside.
Opinion 11-89 A part-time judge who rents office space within the judge’s private law office suite to another attorney and shares a fax line and high-speed copier with the attorney, where there is no indication that they are in any way associated in the private practice of law, need not prohibit his/her tenant from using his/her fax line or from appearing before other judges of the inquiring judge’s court, but is disqualified, subject to remittal, when the tenant/attorney appears before the judge.
Opinion 11-52 An attorney with whom a part-time attorney judge has exchanged referrals of two cases and who otherwise maintains an independent legal practice is not considered an “associate” of the judge for purposes of Section 100.6(B)(3).
Opinion 10-94 (1) Where an attorney pays for space in an attorney town justice’s law office by performing legal work for the part-time justice’s law firm, and the said attorney town justice includes the attorney on the justice’s malpractice insurance coverage in exchange for a percentage of any fees the attorney earns, the attorney is the town justice’s associate and thus may not appear in the attorney town justice’s court either before him/her or his/her co-judge(s).
Opinion 09-233 A part-time lawyer-judge who owns a building and rents space to four other businesses, including two attorneys, may not permit the attorneys to appear before either judge in the judge’s court because the attorneys are the judge’s tenants and they share a fax machine and number with the judge.
Opinion 09-100 (1) A judge may not permit a lawyer who rents part of the law office suite from the judge and does “of counsel” work for the judge’s law practice to appear before either judge who presides in the judge’s court.
Opinion 09-65/09-67 A part-time lawyer judge who shares office space with another attorney or law firm, and any other judge who presides in the same court as the part-time lawyer, must prohibit the other attorney or members of the law firm from appearing in the court. [NOTE: Mostly overruled by Opinion 09-100.]
Advertising and Media; References to Judicial Status; Misuse of Judicial Prestige
- This section focuses on advertisements for a part-time judge's private law practice, speaking to the media on behalf of legal clients, and activities that may create an appearance that the judge is improperly lending judicial prestige to his/her activities as an attorney.
Opinion 26-33 A part-time attorney judge may not wear a Unified Court System lapel pin when appearing in court as a private attorney.
Opinion 24-154 A town justice who practices law (1) may include on their law firm’s stationery and website the disclaimer that the firm cannot accept cases from the town, without reference to his/her judicial status; (2) may mention their judicial title within the body of their online law firm biography, but not in the heading of the biography or elsewhere on the law firm’s website or stationery.
Opinion 22-116 A part-time attorney judge may not place an advertisement promoting their law practice on a building owned by a local business that frequently appears before the judge.
Opinion 21-133 A part-time lawyer judge who is representing a client on a litigated matter may respond to media requests for information and comment on that matter if the judge feels an obligation to respond, provided the judge makes no reference to his/her judicial status.
Opinion 20-58 A part-time lawyer judge must not publish his/her judicial decisions on his/her personal social media website, where doing so may appear to (1) invite discussion, comment, or other input from members of the public or (2) indirectly promote his/her law practice.
Opinion 19-133 (1) A part-time attorney judge who is opposing a motion to remove him/her as an attorney in a pending case may respond to media questions concerning the motion in his/her capacity as an attorney, provided he/she makes no reference to his/her status as a judge. (2) If the judge believes governing law prohibits him/her from providing certain details concerning the litigation, he/she may say so publicly.
Opinion 14-158 A judge who is permitted to practice law may include the designation "Hon." in the body of his/her online biography, but may not include it in the heading of his/her attorney profile on his/her law firm's website nor otherwise display his/her judicial title in the firm's list of attorneys.
Opinion 13-76 A town justice may not include his/her judicial status in his/her law firm's advertisements, but may include it in an online firm biography, in the biography he/she provides when speaking to or participating in bar association meetings, and in the biography he/she provides when speaking to or participating in other groups, not related to the practice of law.
Opinion 13-11 A part-time judge may permit his/her name and likeness to be used in advertising his/her law practice, provided there is no reference to the judge’s judicial status. The judge may not indirectly disclose his/her judicial status in such advertisements by stating that the law firm does not undertake representations in the judge’s court.
Opinion 13-09/13-52 (2) A part-time lawyer/judge who is acting on behalf of a client (a) may respond to media inquiries concerning issues addressed in an amicus brief that the lawyer/judge submitted on behalf of the client and (b) may attend military proceedings as a non-governmental observer on behalf of his/her client and prepare reports for his/her client, solely in his/her capacity as a lawyer representing a client, provided that the judge does not refer to or use his/her judicial status.
Opinion 10-25 A part-time judge may not refer to his/her judicial status in advertisements for his/her private law practice.
Opinion 09-59/09-86 Subject to certain restrictions and otherwise complying with the Rules Governing Judicial Conduct, a part-time judge who practices law may indicate his/her judicial title on the website of the law firm at which he/she practices.
Opinion 06-41 A part-time village justice who practices law may not erect a sign on the facade of the judge’s law office advertising that he/she is a “Justice of the Peace,” authorized to solemnize marriages.
Judicial Hearing Officers (JHOs)
- Note: 22 NYCRR 122.10 sets forth specialized conflicts rules for JHOs.
Opinion 16-119 (1) A JHO may represent clients in uncontested Surrogate’s Court proceedings in any county, even if he/she is designated to serve on the JHO panel for that county’s Surrogate’s Court. (2) A JHO who is designated to serve on the JHO panel for a county’s Surrogate’s Court must immediately withdraw from a proceeding in that court, if it becomes contested with the filing of an answer or objections. (3) A JHO may represent clients in real estate transactions, but must immediately withdraw should the matter result in civil litigation in a court where he/she is designated to serve. (4) A JHO’s law partners and associates are not precluded from appearing on contested matters in a court where the JHO is designated to serve. (5) A JHO may permit his/her law firm colleagues to assume the representation on a contested matter after the JHO withdraws from representation, but the JHO must not participate further in the matter. (6) For any contested matter in a court where the JHO is designated to serve, the JHO must not advise his/her law firm colleagues on the matter, participate in the matter in any way, or receive a fee.
Opinion 15-68 A judicial hearing officer may not participate in a bar association’s pro bono help desk at a court from which he/she accepts judicial hearing officer assignments.
Opinion 14-129(B) A judicial hearing officer designated to the JHO panel for certain courts may nonetheless prepare and argue appeals from decisions in those courts, subject to the limitations of Part 122.
Opinion 10-60 (2) Although a judicial hearing officer may not appear before any judge of a court in which the JHO is designated to serve, the judges of that court need not disclose nor exercise recusal solely because the partners and associates of the JHO appear in a matter.
Opinion 09-230 A judicial hearing officer who is designated to the JHO panel for the Supreme Court in a particular county may not practice in that court, but may continue to accept, complete or perfect appeals from other courts in the same county so long as he/she is not designated to the JHO panel in those courts. [NOTE: Modified by Opinion 14-129(B) and by the 2019 amendment to Section 122.10(c).]
Opinion 09-165 (1) A Judicial Hearing Officer is prohibited from serving either as chair or counsel to an Ethics Committee for a political party. (3) As a private attorney, a Judicial Hearing Officer may give legal and/or ethical advice to public officers, party officials and/or political party members so long as (A) he/she is formally retained so that an attorney-client relationship exists; (B) his/her actions are clearly identifiable as those of an attorney representing a client, and not as partisan political activity; and (C) he/she is fairly compensated for his/her legal services.