Opinion 09-47(A)

March 12, 2009

 

Digest:         A part-time lawyer judge may not permit the practice of law in his/her court by a co-judge’s partners or associates or by an attorney who, while not an associate of the co-judge’s law firm in the traditional sense, is considered to be an associate for purposes of the Rules Governing Judicial Conduct. A town justice may otherwise preside over matters involving municipal departments that employ a co-judge's first-degree relatives and when the first degree relatives appear on behalf of the municipal department that employs them, as long the judge can be impartial.

 

Rule:            Judiciary Law §471; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(2); 100.6(B)(3); Joint Opinion 09-65/09-67; Opinions 08-129; 07-22; 07-14; 06-148; 05-124, modified by 07-14; 05-114; 01-60; 99-170 (Vol. XVIII); 97-60 (Vol. XV); 96-36 (Vol. XIV); 95-15 (Vol. XIII); 91-93 (Vol. VIII); 90-111 (Vol. VI); 88-39 (Vol. II).


Opinion:


         A part-time lawyer judge asks several questions about his/her obligation to disqualify him/herself in cases involving a co-judge’s relatives, business associates, tenants, and employees who appear in the inquiring judge’s court as parties or attorneys.


         The inquiring part-time lawyer judge advises that his/her lawyer co-judge maintains an active law practice with a number of other attorneys. In addition, according to the inquiring judge, several of the co-judge’s relatives are practicing attorneys in the same municipality where the inquiring judge and the co-judge preside. Some of these relatives are members of the co-judge’s law firm. Others appear to have some association with the co-judge’s law firm, such as sharing or using law office space. Some also are employed by the same municipality where both judges preside. In addition, an attorney who resides in the co-judge’s household with one of the co-judge’s children and may be associated with the co-judge’s law firm is employed by the same municipality where both judges preside. Finally, the inquiring judge advises that his/her co-judge owns businesses and properties in the municipality where they both preside, some with another lawyer/relative, and that the co-judge’s business associates, tenants and employees appear in the court. The inquiring judge asks whether he/she is disqualified from presiding in cases involving any of the attorneys associated with the co-judge, the co-judge’s attorney/relatives, or the co-judge’s business associates, tenants or employees.


         A judge must avoid impropriety and the appearance of impropriety (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself in any proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]). In addition, a part-time judge who is permitted to practice law shall not permit the practice of law in his/her court by the law partners or associates of another judge of the same court who is permitted to practice law (see 22 NYCRR 100.6[B][3]). And, pursuant to Judiciary Law §471, “[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 . . . a member, or in a cause originating in that court. . . .”

 

I.       Partners and Associates


         Because a part-time lawyer judge must not permit the practice of law in his/her court by the law partners or associates of another judge of the same court who is permitted to practice law (see 22 NYCRR 100.6[B][3]), it is clear that the inquiring judge cannot permit any partner or associate of the co-judge’s law firm to appear before him/her, including any family member who is an attorney with the firm.


         In prior Opinions, the Committee has construed the term “associate” broadly, to encompass more than the traditional notion of an associate in a law firm (see Opinion 96-36 [Vol. XIV]; see also Judiciary Law §471 [prohibiting a "person connected in law business with a judge" from practicing in a court of which the judge is a member]). For example, in Joint Opinion 09-65/09-67 and Opinions 07-14; 05-124, modified by 07-14; 88-39 (Vol. II), the Committee advised that a lawyer with whom a judge shares office space should be considered the judge’s associate for purposes of this Rule. And, the Committee has identified other factors that give rise to an associate relationship between an attorney and a judge: Opinion 01-60 (Vol. XX) (attorney retained by lawyer-judge on per diem basis to prepare real estate contracts on behalf of judge in connection with the judge's law practice deemed to be an associate of the judge); Opinion 97-60 (Vol. XV) (there is at least an appearance of association where letterheads of attorney and co-judge include same fax number and attorney is tenant in building owned by co-judge); Opinion 96-36 (Vol. XIV) (attorney who is a member of a law firm to which part-time judge is "of counsel" may not practice law before another part-time judge in the same court). Nor does the fact that an attorney maintains an independent law practice necessarily preclude him/her from being considered an associate for purposes of §100.6(B)(3) of the Rules Governing Judicial Conduct (see Opinion 01-60 [Vol. XX]). The Committee’s concern in situations such as these, is that the attorney’s relationship to a judge of a court can reasonably be perceived as affording that attorney an inappropriate advantage before any judge of that court.

         Given the Committee’s broad definition of the term “associate,” the inquiring judge also must determine which other attorneys, if any, should be deemed the co-judge’s associates (see 22 NYCRR 100.6[B][3]). If they are, the judge thereafter may not permit any such attorney to appear in the court.


         For example, in the Committee’s view, the co-judge’s relative/attorney who maintains a separate law practice, but routinely meets with clients at the co-judge’s law office may be an associate of the co-judge’s law firm. And, to the extent that other attorneys from the separate law firm do the same, they also should be deemed associates of the co-judge’s law firm. Also, the attorney who resides in the co-judge’s home and uses the co-judge’s law firm address as his/her business address may be an associate of the co-judge’s law firm.


         The Committee suggests that the inquiring judge question these attorneys on the record to determine the nature of their relationships to the co-judge’s law firm and, if necessary, seek further advice from the Committee concerning disqualification.

 

II.      Related Attorney Employed by the Municipality


         The inquiring judge advises that one of the co-judge’s first degree relatives is an assistant municipal attorney for the municipality where both judges preside, that an attorney who resides in the co-judge’s home with the co-judge’s first degree relative is an attorney for a municipal authority’s board, and that one of the co-judge’s first degree relatives who is an associate in the co-judge’s law firm also serves on a municipal board. The inquiring judge asks whether he/she must disqualify him/herself either when the municipal department or boards appear in the court or when any of the attorneys appear in the court to represent their employers.


         The Committee previously has advised that a familial relationship between a judge and an attorney does not necessarily warrant disqualification when the attorney appears before another judge in the same court where the related judge presides, although it should be disclosed if there are only two judges in the court (see Opinions 08-129 [spouse]; 95-15 [Vol. XIII] [spouse]; 90-111 [Vol. VI] [spouse]; 05-124, modified by 07-14 [brother]; 05-114 [brother-in-law]; 99-170 [Vol. XVIII] [parent or sibling]).


         Nor is a judge automatically disqualified from hearing matters in which a municipal attorney appears (see Opinions 07-22 [town justice and town attorney]; 06-148 [city judge and city attorney]; 91-93 [Vol. VIII] [village justice and village attorney]). Therefore, the inquiring judge may preside when the municipal entities that employ the co-judge’s relatives appear in the judge’s court. The inquiring judge also may preside when the co-judge’s first degree relative who is an assistant municipal attorney for the municipality where both judges preside appears in the judge’s court for the municipality and when the attorney who resides in the co-judge’s home with the co-judge’s first degree relative and is an attorney for a municipal authority’s board appears in the judge’s court for the municipal authority’s board as long as the judge believes that he/she can be impartial (see 22 NYCRR 100.3[E][1]). But, if there are only two judges in the court, the inquiring judge should disclose the familial relationship when the co-judge’s first degree relative appears (see Opinion 95-15 [Vol. XIII]).


         However, the inquiring judge may not preside when his/her co-judge’s first degree relative who is an associate in the co-judge’s law firm appears in the judge’s court on behalf of the municipal board on which he/she serves (see 22 NYCRR 100.6[B][3]).

 

III.      Familial Relationship with Attorney in Private Practice


         The inquiring judge also advises that his/her co-judge’s first degree relative and the in-law practice law in the first degree relative’s law firm. The judge asks if he/she may preside when either lawyer appears. As noted above, a familial relationship between a judge and an attorney does not necessarily warrant disqualification when the attorney appears before a co- judge in the same court where the related judge presides (see Opinions 08-129 [spouse]; 95-15 [Vol. XIII] [spouse]; 90-111 [Vol. VI] [spouse]; 05-124, modified by 07-14 [brother]; 05-114 [brother-in-law]; 99-170 [Vol. XVIII] [parent or sibling]). But, when there are only two judges presiding in the court, the judge before whom the attorney is permitted to appear must disclose that the attorney is related to the other judge in the court (see Opinion 08-129).

 

IV.     Other Relationship to Attorney in Private Practice


         The inquiring judge also advises that an attorney who resides in the co-judge’s home with one of the co-judge’s children is an attorney and serves on the board of a municipal authority. The judge asks whether he/she may preside either when the authority appears or when the attorney appears. Even if this attorney were considered the co-judge’s relative, the inquiring judge need not disqualify him/herself when the attorney appears in his/her court (see Opinions 08-129 [spouse]; 95-15 [Vol. XIII] [spouse]; 90-111 [Vol. VI] [spouse]; 05-124, modified by 07-14 [brother]; 05-114 [brother-in-law]; 99-170 [Vol. XVIII] [parent or sibling]) as long as the judge believes that he/she can be impartial. Nor is the judge disqualified because the attorney is employed by the board of a municipal authority either when the municipal authority appears in his/her court or when the attorney appears on the municipal authority’s behalf, as long as the judge believes that he/she can be impartial (see Opinions 07-22 [town justice and town attorney]; 06-148 [city judge and city attorney]; 91-93 [Vol. VIII] [village justice and village attorney]).


         However, the Committee notes that this attorney also may be associated with the co-judge’s law firm as he/she has a business card bearing his/her name and the address of the co-judge’s law firm. Consequently, the inquiring judge should further question this attorney to determine whether circumstances exist that require the judge to preclude this attorney from appearing in the court (see 22 NYCRR 100.6[B][3]; see also Joint Opinion 09-65/09-67 and Opinions 07-14; 05-124, modified by 07-14; 88-39 [Vol. II]).

 

V.      Co-Judge’s Business Associates, Tenants and Employees


         Finally, the inquiring judge asks generally whether he/she may hear cases involving persons who are the co-judge’s business associates, tenants or employees. The answer to this question depends upon specific situations that the inquiring judge may confront but which the inquiring judge has not described. Nevertheless, the Committee notes that the Rules Governing Judicial Conduct do not require a judge to keep informed about a co-judge’s economic interests (compare 22 NYCRR 100.3[E][2]). Therefore, the Committee invites the inquiring judge to inquire further as to his/her co-judge’s business associates, tenants and employees as specific situations arise in pending or future proceedings.