June 17, 2021
Digest: The Rules Governing Judicial Conduct do not preclude two part-time lawyer judges who preside in the same court from representing two potentially adverse parties in a proceeding before a full-time judge in another court.
Rules: Judiciary Law § 16; 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(G); 100.6(B)(1)-(2), (4); 22 NYCRR 101.1; Opinions 20-172; 20-48; 18-129; 08-223; 96-120.
A part-time lawyer judge, whose co-judge is also a part-time lawyer judge, asks if both judges may appear in the same case, representing different parties in the same proceeding before a full-time judge. It appears that each judge has been assigned to represent a client in the same family court matter, one as 18-B assigned counsel for a parent and the other as attorney for the child. Thus, their prospective clients could potentially be adverse to each other.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must not lend judicial prestige to advance any private interests (see 22 NYCRR 100.2[C]). A part-time lawyer judge may nonetheless practice law, subject to limitations (see 22 NYCRR 100.6[B]; 100.4[G]). For example, the judge may not practice before another part-time lawyer judge in the same county (see 22 NYCRR 100.6[B]) and may not act as an attorney in any matter originating in the judge’s own court (see Judiciary Law § 16; 22 NYCRR 100.6[B]). Also, any outside employment must not be “incompatible with judicial office” and must not “conflict or interfere with the proper performance of the judge’s duties” (22 NYCRR 100.6[B]).
A part-time lawyer judge generally may accept assignments to represent a litigant, whether adult or infant, in any other court of the state, including in the county where the part-time judge presides, so long as the case is presided over by a judge who is not permitted to practice law (see Opinion 96-120; see also Opinions 20-172 [assigned counsel for indigent defendant]; 18-129 [attorney for the child]). Indeed, we have said a part-time judge may handle criminal and traffic defense matters as an attorney in the same county where they preside, even though the prosecutors in those cases may also appear in the judge’s court (see Opinion 20-48).
In our view, the Rules Governing Judicial Conduct do not preclude two part-time lawyer judges who preside in the same court from representing two potentially adverse parties in a proceeding before a full-time judge in another court. At this preliminary stage, therefore, we see no judicial ethics issues to address. If, during the course of the litigation, the co-judges’ adversarial position impacts or interferes with their ability to perform their judicial duties, then they may write in for guidance on the specific circumstances presented.
We are authorized to issue opinions to judges on matters of judicial ethics, including “proper execution of judicial duties, and possible conflicts between private interests and official duties” (22 NYCRR 101.1). We cannot address any matters of attorney ethics that may arise under the Rules of Professional Conduct (see Opinion 08-223).