September 6, 2018
Digest: A full-time judge may provide informal, uncompensated legal advice to adult relatives involved in pending or impending civil or criminal proceedings, but may not participate in discussions with their retained counsel, as that constitutes the prohibited practice of law. To avoid even the appearance of impropriety, the judge must not attend meetings with counsel.
Rules: 22 NYCRR 100.0(I); 100.2; 100.2(A); 100.2(C); 100.4(G); 100.6(B)(2); Opinions 14-89; 14-80; 14-03; 13-68; 11-55; 06-155; 03-129; 01-78; 92-118.
A full-time judge’s adult second degree relatives have been sued civilly and are under investigation criminally. They retained counsel recommended by the judge who asks if he/she may discuss these matters with his/her relatives, including in the presence of their attorneys, and whether the judge may discuss the matters directly with the lawyers without the family members present.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge may not lend judicial prestige to advance any private interests (see 22 NYCRR 100.2[C]). Also, a full-time judge “shall not practice law [but] may, without compensation, give legal advice to a member of the judge’s family” (22 NYCRR 100.4[G]; see also 22 NYCRR 100.0[I] [“member of the judge’s family” means “a spouse, child, grandchild, parent, grandparent or other relative or person with whom the judge maintains a close familial relationship”]; Opinion 14-89 [“member of the judge’s family” presumptively sixth degree relatives]).
Because the practice of law is absolutely prohibited, a full-time judge “may not serve as [his/her] parent’s attorney during [an] eviction proceeding” (Opinion 13-68); may not prepare wills (see Opinion 03-129); may not represent his/her child at a real estate closing (see Opinion 92-118); may not serve as the attorney of a parent’s estate, even though permissibly serving as the estate’s executor (see Opinion 14-03); and may not be “an [added] signatory on his/her sibling’s law office escrow account, in the event that the sibling dies or becomes disabled” (Opinion 06-155).
We previously stated, without discussion or analysis, that a full-time judge may provide “informal, uncompensated legal advice and assistance to his/her spouse in the selection of, and consultation with, counsel to represent the spouse in a proposed class action or other proceeding” involving the spouse’s employment-related claims against the Office of Court Administration (Opinion 11-55 [emphasis added]).1 However, in Opinion 14-80, we clarified the practice of law includes active and ongoing discussions with another attorney about a client’s legal matter. We have recognized “the practice of law is not confined to appearances in court, but includes all actions taken on behalf of clients in matters connected with the law” (Opinion 01-78). Thus, we said a part-time judge who was ethically barred from practicing in a particular court2 must not provide “behind-the scenes advice and assistance” to a criminal defendant in that court by (1) contacting the defendant’s assigned counsel to “determine the charges, obtain photocopies of all relevant documents,” and, based on that conversation, determining the prosecutor’s position on the charges; (2) “continu[ing] ongoing discussions” with assigned counsel regarding “the charges, treatment and the offer etc.”; and (3) discussing all these matters with the defendant and his/her relatives “so all are on the same page and have a full understanding of what is occurring” (Opinion 14-80). Rather, we concluded that “the advice and assistance the inquiring judge wishe[d] to provide the defendant likewise constitute[d] the practice of law” (id.).
Thus, while this full-time judge may retain or assist in retaining an attorney for adult relatives who are involved in pending or impending civil or criminal proceedings (see e.g. Opinion 13-68), and may continue to provide informal legal advice directly to these relatives (see 22 NYCRR 100.4[G]), he/she may not discuss or strategize about the matters directly with retained counsel, whether or not his/her relatives are present, as to do so constitutes the impermissible practice of law and/or creates the appearance the judge was essentially serving as co-counsel.
Indeed, to avoid even an appearance of impropriety, the judge must not be present in person, by telephone or otherwise, during the relatives’ meetings with their retained attorneys.
1 At this time, we do not have occasion to reconsider Opinion 11-55, which involved a judge’s spouse, who presumably shares a household and finances with the judge, unlike the adult relatives under consideration here.
2 The part-time lawyer judge in Opinion 14-80 could not appear in the friend’s criminal case because it was before another part-time lawyer judge in the same county (see 22 NYCRR 100.6[B]).