Opinion 26-38
March 26, 2026
Digest: 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.
Rules: 22 NYCRR 100.2; 100.2(A); 100.4(D)(3); 100.4(G); Opinions 24-110; 22-86; 22-24(A); 21-13; 18-22; 10-139; 95-12; 89-134.
Opinion:
Before assuming full-time judicial office, the inquiring judge maintained a private law practice organized as a corporation in which the judge was the sole shareholder and officer. Some years ago, the judge’s law firm represented a client in a personal injury claim and then entered into an agreement with the client’s new counsel to receive legal fees.[1] The action is still pending and the lien for legal fees is still active. The judge has continued to carry the “shell of the corporation” in anticipation of collecting on the fee lien, but would prefer to dissolve the corporation entirely. Accordingly, the judge asks if he/she may ethically assign the lien to him/herself, individually, in order to collect on the lien in his/her personal name in the future.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). As relevant here, a full-time judge may not practice law (see 22 NYCRR 100.4[G]) or serve as a manager, employee, or other active participant of a business entity (see 22 NYCRR 100.4[D][3]).
A full-time judge may nonetheless engage in “ministerial or administrative” activities designed to wind down their prior law practice and collect previously earned legal fees (see e.g. Opinions 21-13 [“These activities may include sending periodic bills to former clients and maintaining an escrow account to process fees earned prior to assuming office”]; 22-86 [“A new full-time judge may submit vouchers for legal fees earned for work performed as assigned counsel prior to assuming the bench”]).
Moreover, we have consistently advised that “a full-time judge may collect previously earned legal fees ‘even if the fees are contingent and not payable for some years, provided the fee arrangement is otherwise proper’” (Opinion 24-110 [citations omitted]). Thus, for example, a judge may continue to receive clients’ wage garnishment monies from the sheriff’s office, retain the portion related to the judge’s fee, and pay the balance to the client even if the judge will receive such money for one or more years (see Opinion 10-139); may send periodic bills to former clients and maintain an escrow account for the processing of fees earned prior to assuming judicial office (see Opinion 95-12); and may retain his/her own separate checking account to receive previously earned legal fees and to pay out his/her portion of the law firm’s bookkeeping expenses (see Opinion 89-134). Where the judge’s professional corporation’s bank account remains open to pay expenses related to winding down the practice, a check from the successor law firm for the judge’s previously earned legal fees “may be made payable to the professional corporation” (Opinion 24-110).
Moreover, a full-time judge may “act pro se” with respect to such activities (22 NYCRR 100.4[G]). For example, we have said a full-time judge may personally negotiate with the judge’s “former law firm regarding the disposition of a limited liability company in which they both own a 50% interest” (Opinion 22-24[A]), directly negotiate “a fee split or quantum meruit agreement” with a successor law firm (Opinion 24-110), or appear without counsel in court concerning his/her fees for work previously performed as guardian ad litem (see Opinion 18-22).
We therefore see no ethical impropriety in the judge assigning to him/herself the lien for agreed-upon legal fees due to a professional corporation in which the judge was the sole shareholder and officer so that he/she can dissolve the corporation’s shell.
[1] While we cannot advise on attorney ethics matters, we note for completeness that “the fee agreement must be permissible under the Rules of Professional Conduct” (Opinion 24-110).