Opinion 88-50

September 19, 1988

Topic:          An attorney-justice inquires as to the limitations upon the justice and the justice’s partners in representing clients who have cases calendared in his court.

Digest:         An attorney-justice and the partners of the justice may not represent clients if the case originates in the justice’s court.

Rules:          Sections 16, 17 and 471 of the Judiciary Law; sections 100.3(c)(1) and 100.5(f) of the Rules of the Chief Administrator of the Courts [22 NYCRR]

Opinion:

         A justice who also practices law is a member of the only law firm in the town where he resides. He relates that it is a common practice in the county for attorney-justices to transfer cases out of their town or village courts to a non-attorney justice of another town. He requests an opinion on several specific situations which arise regularly. The situations are:

1. An existing client of the attorney-justice’s law firm receives a ticket for a misdemeanor to appear before the justice. Before the return date, the client asks the justice to represent him in the matter. With the consent of the District Attorney, the case is transferred to another town court. All appearances, including the initial one, are handled in front of a non-attorney justice in another town court.

2. The same fact pattern as above, except that the existing client contacts one of the other attorneys in the law firm who obtains the consent of the District Attorney and the transfer order to another town.

3. An existing client of the justice’s law firm is arraigned before the other justice of the town (a non-attorney justice who has no association with the law firm). Subsequent to the initial appearance, at which the client appears unrepresented, the client contacts either the attorney-justice or one of his partners for representation. A transfer is obtained with the consent of the District Attorney to a non-attorney justice in another town.

4. An existing client of the justice’s law firm is arraigned before the attorney-justice either on a warrant or on the initial appearance date of a traffic ticket. The justice asks whether it would be proper to transfer the case to the other justice in the town to avoid any appearance of conflict of interest.

5. The inquirer asks whether it would be proper for either he or any member of his office to represent someone who appears before him when there is no pre-existing relationship between them, if the case is transferred to another town.

6. Finally, this justice requests a clarification of the term “originating in that court,” as set forth in section 16 of the Judiciary Law.

         Because of its impact on the other questions, the Committee replies first to question number 6. Section 16 of the Judiciary Law forbids the practice of law by a judge “in an action, claim, matter, motion or proceeding originating in [his or her] court.” The phrase “originating in [his or her] court” includes any case upon which some court action has been taken, such as the filing of a case in the court, or the issuance of an appearance ticket. It is not necessary that any other judicial action be taken on the case to invoke the prohibition against the judge’s handling of the case.

         The prohibition against the judge’s handling of cases extends to cases which were initiated before another judge in the same court. The unambiguous meaning of “the court” encompasses the entire judicial staff of the court. To read the phrase otherwise would require acceptance of an interpretation of “the court” to mean “the individual judge’s courtroom,” which is clearly not intended by the phrase.

         Section 100.5(f) of the Rules of the Chief Administrator provides in relevant part that:

No judge who is permitted to practice law shall permit his or her partners or associates to practice law in the court in which he or she is a judge. No judge who is permitted to practice law shall 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.

         Section 471 of the Judiciary Law provides:

The law partner ... of a judge shall not practice before him, as attorney or counselor in any cause, or be employed in any cause which originated before him. A law partner of, or person connected in law business with a judge, shall not practice or act as an attorney or counselor, in a court, of which the judge is, or is entitled to act as a member, or in a cause originating in that court; except where the latter is a member of a court, ex officio, and does not officiate or take part, as a member of that court in any of the proceedings therein.

         Thus, statute and rules prohibit both the justice and the justice’s partners from handling as attorneys the cases discussed in all of the fact patterns, because the cases originated in the justice’s court, even though they were subsequently transferred to another court.

         Only question four, as stated, is answered in the affirmative, since the justice should not hear the case involving a client, and should transfer the case to another justice.

         This opinion is advisory only and is not binding upon the Commission on Judicial Conduct or the Office of Court Administration.