June 20, 2013
This responds to your inquiry (13-08) asking whether it is ethically permissible for you to be credited as an author of an appellate brief. You indicate that you represented the defendant just prior to assuming the bench and briefed six points raised on appeal before another attorney assumed the representation.
Pursuant to the Rules Governing Judicial Conduct, a full-time judge is prohibited from practicing law (see 22 NYCRR 100.4[G]).
The Committee has advised that a full-time judge may perform certain ministerial tasks with respect to fiduciary appointments held prior to taking judicial office (see Opinions 06-116; 03-37; 99-76 [XVIII]). However, the inclusion of your name on an appellate brief reflects your advocacy on behalf of a client which is prohibited by §100.4(G) of the Rules.
I have enclosed Opinions 06-116; 03-37 and 99-76 (Vol. XVIII) for your convenience.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)