June 10, 2010
Please Note: In Opinion 18-153, the Committee characterized the views on fee-sharing expressed in this opinion as “mere dicta” and declined to follow them: “On the question of sharing fees, we find the reasoning of Opinion 94-32 more persuasive than the mere dicta of Opinion 10-94. Notably, the representation will not take place elsewhere in the same county, but actually within the same town where the judge presides, before an administrative board of that town. Accordingly, we conclude that the judge may permit his/her partners or associates to represent a client before the town’s board of assessment review, but must not participate in the representation nor accept a fee from the representation (cf. Opinion 12-182 [‘the law firm should segregate the fees and distribute them amongst anyone in the firm entitled to a share, except the inquiring judge, and insulate the judge from all involvement in the case’]).”
Digest: (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.
Rules: Judiciary Law § 471; 22 NYCRR 100.2; 100.2(A); 100.6(B)(1); 100.6(B)(3); Opinions 09-100; 08-87; 01-60; Joint Opinion 89-44/89-60 (Vol. V).
A part-time town justice who also is a practicing attorney provides office space to another attorney, which does not include secretarial or paralegal assistance. In exchange for the office space, the attorney must perform a minimum amount of legal work for the judge’s law practice. For any work exceeding the minimum required, the judge pays the attorney an hourly rate. According to the judge, the attorney solicits his/her own legal work, fixes his/her own work schedule, and uses his/her own letterhead and business cards, which do not refer to the judge as a private practitioner or the judge’s law practice. The judge’s malpractice insurance covers the attorney in return for ½ of any fee the attorney generates. The judge does not permit the attorney to appear before him/her. The judge asks the following questions concerning the attorney’s law practice:
1. May the attorney appear in the inquiring judge’s court before his/her co-judge?
2. May the attorney appear before the town zoning board or in other town administrative proceedings if the attorney retains the entire fee generated by any such appearance?
3. May the attorney appear on behalf of his/her own clients in other town and village courts located in the same county where the judge presides?
A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (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]). A part-time judge who is a lawyer is permitted to practice law (see 22 NYCRR 100.6[B]), but may not permit his/her partners or associates to practice law in the court where he/she presides (see Judiciary Law § 471; 22 NYCRR 100.6[B]).
The Committee previously has advised that, for the purposes of Rule 100.6(B)(3), the term “associate” is broader than the traditional notion of an associate in a law firm and includes attorneys who work for the judge on a per diem basis (see, e.g., Opinion 01-60 [a lawyer who prepares real estate contracts for a judge on a per diem basis is the judge’s “associate”]; 22 NYCRR 100.6[B]). In Opinion 09-100, the Committee advised that a judge renting office space to a lawyer could not permit that lawyer to appear before him/her or any other judge of the judge’s court, where the lawyer “from time to time” acted “of counsel” to the judge’s law practice, even though the lawyer maintained a separate telephone number and support staff. In the Committee’ s view, the attorney with whom the inquiring judge shares office space also is the judge’s associate for the purposes of Rule 100.6(B)(3) because the lawyer must perform a minimum number of hours of legal work for the judge and is named on the judge’s malpractice policy. Accordingly, the attorney may not appear before any judge of the town court in which the inquiring judge presides, whether the attorney is representing his/her own clients or the judge’s clients (see id.).
However, assuming there are no other independent disqualifying factors, the attorney is not prohibited from appearing before the town zoning board or from participating in other administrative proceedings in the same town where the judge presides (see Joint Opinion 89-44/89-60 [Vol. V] [judge’s law partners and associates may appear before a town board on behalf of the judge’s clients]), regardless of whether he/she retains the entire fee earned or shares it with the judge. Similarly, the attorney may appear on behalf of the judge’s clients or his/her own clients in other justice courts located within the same county where the inquiring judge presides (see 22 NYCRR 100.6[B]; Opinion 08-87 [part-time attorney/judge may hire another attorney or law firm that is “of counsel” to him/her to appear in another court in the same county where the judge presides, before another part-time judge who is permitted to practice law]).