Opinion 13-02

January 24, 2013


Digest:         Where a part-time judge’s former client has filed a criminal complaint in the judge’s court relating to an alleged violation of an order issued by another court, the judge may not represent his/her former client in the other court, as the representation involves the same parties and the same or related facts as the pending criminal matter.


Rule:            Criminal Procedure Law § 530.11(4); Judiciary Law § 16; 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.4(A)(3); 100.6(B); 100.6(B)(2); Opinions 12-119; 01-05 (Vol. XIX).


         A part-time judge who is permitted to practice law represented a client in a Family Court matter involving custody and visitation. On conclusion of the matter, the Family Court judge issued an order restricting the opposing party’s contact with the judge’s client. The judge’s client has now filed a criminal complaint against the opposing party in the court where the judge presides, alleging violation of the Family Court order. The inquiring judge states that he/she has had no involvement in the pending criminal matter; his/her co-judge issued an Order of Protection and will preside during the arraignment. The client also commenced a new proceeding in the Family Court, seeking modification of the order issued in the original custody and visitation matter, and seeks to again retain the inquiring judge to represent him/her. The inquiring judge asks if he/she may represent the client in the new, related Family Court proceeding while the criminal complaint involving the same parties and related issues is pending before his/her co-judge.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Indeed, a judge’s judicial duties take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]). A part-time lawyer judge is permitted to practice law (see 22 NYCRR 100.6[B]), but not in the court where the judge serves (see 22 NYCRR 100.6[B][2]) or in a matter that originates in the judge’s court (see Judiciary Law § 16).

         The Committee considered a similar fact pattern in Opinion 01-05 (Vol. XIX). There, a part-time lawyer judge’s long-time client sought to retain the judge to represent the client and the client’s adult child in a Family Court proceeding involving custody and visitation of the client’s grandchild. The client’s adult child and his/her partner were the grandchild’s parents. At that time, the adult child already was the subject of a criminal complaint pending before the judge’s co-judge that involved the adult child and the adult child’s partner. The Committee noted that, although the impending Family Court proceeding did not originate in the judge’s court, the two proceedings “are clearly intertwined, and that what occurs in the criminal proceeding could well affect a disposition in the Family Court proceeding” (see id.). The Committee further noted that the judge’s court has jurisdiction to entertain emergency applications in Family Court proceedings when a Family Court judge is not available (see id.; Criminal Procedure Law § 530.11[4]).

         Similarly, in the current inquiry, the facts in the criminal matter commenced in the judge’s court and the facts in the impending Family Court matter are clearly intertwined. And, the outcome of the inquiring judge’s client’s criminal complaint also is likely to affect the outcome in Family Court. It is also true in the present inquiry that although the criminal case is pending before the inquiring judge’s co-judge, the inquiring judge would have to address that case’s allegations, as undoubtedly they will be raised in the Family Court proceeding as well. Finally, the judge’s court also has jurisdiction to entertain emergency applications in Family Court proceedings when a Family Court judge is not available (see Opinion 01-05 [Vol. XIX]; Criminal Procedure Law § 530.11[4]).

         Therefore, it is ethically impermissible for the inquiring judge to undertake the new representation in Family Court once the client causes a criminal complaint to be filed -- involving essentially the same facts -- in the court where the judge presides. Under the circumstances presented, the judge’s role as an attorney in the new representation would be ethically incompatible with his/her judicial office (see Opinion 01-05 [Vol. XIX]; 22 NYCRR 100.4[A][3]).1


     1 The Committee recognizes that there is at least one significant difference between the facts in the present inquiry and those in Opinion 01-05. Here, a former client seeks to retain the same lawyer to represent him/her in a subsequent, related matter; it is not clear that there was any such pre-existing, relevant attorney/client relationship in Opinion 01-05. Thus, the client here may unfortunately face additional costs and delays due to the change of counsel. However, these are due to the client’s filing of a related criminal complaint in the court where the judge presides. In that regard, the Committee emphasizes that the present inquiry does not involve circumstances in which a client’s opponent files an action against the judge’s client in the court where the judge presides (cf. Opinion 12-119 [the Committee does not answer hypothetical or speculative questions]).