January 27, 2022
Digest: A new town judge, who can no longer represent an existing client on a nearly completed matter that originated in the town court, may agree to pay the successor attorney a portion of the original retainer.
Rules: Judiciary Law §§ 16-17; 471; 22 NYCRR 100.2; 100.2(A); 100.6(B)(2)-(3); 22 NYCRR part 1200, Rules 1.5, 1.16; Opinions 21-132; 21-13; 17-157; 12-173.
The inquiring town justice has arranged for a successor attorney to take over a nearly-concluded representation the judge can no longer handle on assuming the bench, because the case originated in the judge’s court. The attorneys have negotiated a set amount, a small portion of the client’s original retainer payment, as fair compensation for the two remaining appearances. The judge asks if this arrangement is ethically permissible, and if so, whether the judge may pay the successor attorney directly, rather than refunding the money to the client first so that the client can make the payment.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A part-time attorney judge may engage in the practice of law, subject to limitations (see e.g. 22 NYCRR 100.6[B]-; Judiciary Law §§ 16-17; 471). For example, a part-time judge must “not practice law in the court on which the judge serves” (22 NYCRR 100.6[B]; Judiciary Law § 16) and may not represent clients in matters that “originated in” the judge’s court (see e.g. Opinion 12-173; Judiciary Law § 16).
A judge may request and accept permissible legal fees and disbursements for work performed before assuming the bench, even if they are prohibited from continuing the work thereafter (see Opinions 21-132 [part-time judge]; 21-13 [full-time judge]). With respect to full-time judges, who are not permitted to practice law at all after assuming the bench, we have said they may nonetheless engage in certain winding-down activities which are essentially ministerial or administrative in nature and necessary to effectuate dissolution of the judge’s practice (see Opinion 17-157).
While the inquiring town judge may no longer participate in this particular representation under the facts presented, we believe they may nonetheless take reasonable steps to collect previously earned legal fees and arrange for a new attorney to assume the representation. Accordingly, we conclude this judge may agree to pay the successor attorney a portion of the original retainer, and may make the payment directly rather than channeling the money through the client, as these activities are ministerial or administrative in nature and necessary to effectuate transfer of the case to another attorney for completion.
We note that we cannot comment on any legal obligations the judge may have under the Rules of Professional Conduct or applicable law, including any requirements for consent of the client and/or the tribunal with regard to division of legal fees, choice of counsel, and withdrawal from representation (see e.g. 22 NYCRR pt 1200, Rules 1.5 [fees and division of fees]; 1.16 [declining or terminating representation]).