Opinion 18-179

January 3, 2019

Dear :

         This responds to your inquiry (18-179) asking whether, upon your recent election to the position of full-time judge, you may: 1) continue to serve as an officer and manager of several LLCs that own commercial properties, where you and your sibling are the sole members of the LLCs; 2) continue to pool monies from these family-owned LLCs to purchase and develop additional residential properties in another jurisdiction; 3) continue as owner of a realty development corporation which is engaged in constructing a residential property in another jurisdiction; and 4) continue to rent a commercial property in another jurisdiction to a variety of tenants, including attorneys, where you plan to recuse yourself from any matter in which a tenant/attorney is involved.

         Although a full-time judge is ordinarily prohibited from being an active participant in any business entity, the Rules Governing Judicial Conduct specifically permit a judge to hold and manage his/her own investments and the investments of family members, including real estate. In addition, the Rules allow a judge to manage and participate in a business entity engaged solely in investment of the financial resources of the judge or members of his/her family (see 22 NYCRR 100.4[D][2]; 100.4[D][3][b]). Thus, the Committee has previously advised that a judge may be an officer of a family corporation that invests in real estate; may be a member of an LLC that owns income producing real estate along with family members; and may appear in court pro se if the judge is the sole member of an LLC.

         Accordingly, you may continue in your roles as owner, officer and managing partner of your and your family’s various solely owned real estate holdings, including managing the income therefrom and reinvesting said income into new real estate properties. In addition, you may serve as an officer of a family corporation unless and until a non-family member becomes a shareholder.

         Finally, a judge may accept rent from an attorney, but must disqualify him/herself, subject to remittal, for the duration of the landlord/tenant relationship. A judge’s obligation to disqualify him/herself ends upon termination of the landlord/tenant relationship. However, a judge must divest him/herself of investments and other financial interests that might require frequent disqualification (see 22 NYCRR 100.4[D][4]).

         Enclosed, for your convenience, are Opinions 17-143 (digest #3); 16-80; 10-203(B); 10-193; 10-77; and 99-84.

                                       Very truly yours,

                                       George D. Marlow, Assoc. Justice (Ret.)

                                       Appellate Div., First Dep’t

                                       Committee Co-Chair

                                       Hon. Margaret T. Walsh

                                       Supreme Court Justice

                                       Committee Co-Chair

Encls.