Opinion 87-10

January 28, 1988

Item (b) of this opinion is overruled, as the Committee has repeatedly advised that a judge’s law firm associates may appear in courts where the judge him/herself may not appear, other than the judge’s own court.  See Opinion 12-173.

Topic:          Appearance by partners or associates of a part-time judge before part-time judges who are attorneys.

Digest:         Partners or associates of a part-time judge who is an attorney may not practice law in that judge’s court, but may practice in a court presided over by a judge who is permitted to practice law in another town, village or city. But an associate who is an employee of the judge handling cases for that judge is subject to the same restrictions as the judge himself.

Rules:          22 NYCRR 100.5(f)

Opinion:

         A part-time judge who is an attorney asks the views of the Committee as to permissible practice, before part-time judges who may practice law, of partners or associates of the inquiring part-time judge.

         Section 100.5(f) of the Rules of the Chief Administrator of the Courts provides in relevant part as follows:

(f) Practice of law. A judge who is permitted to practice law shall, nevertheless, not practice law in the court in which he or she is a judge, whether elected or appointed, nor shall a judge practice law in any other court in the county in which his or her court is located which is presided over by a judge who is permitted to practice law. * * * No judge who is permitted to practice law shall permit his or her partners or associates to practice law in the court in which he or she is a judge. No judge who is permitted to practice law shall permit the practice of law in his or her court by the law partners or associates of another judge of the same court who is permitted to practice law. A judge may permit the practice of law in his or her court by the partners or associates of a judge of a court in another town, village or city who is permitted to practice law.

         (a) The Committee concludes, therefore, that in general partners or associates of a part-time judge may not practice law in that judge’s court, but may do so in a court of another town, village or city presided over by a judge who is permitted to practice law. This view is consistent with Opinion No. 520 of April 23, 1980 of the Committee on Professional Ethics of the New York State Bar Association.

         (b) However, as an exception to the above, the Committee concludes that to the extent that the associate is acting as an employee of a part-time judge, handling cases for that part-time judge, his appearance in any court is equivalent to an appearance by the part-time judge himself and accordingly should be subject to the same restrictions. Therefore, such an associate-employee may not practice in his employer’s court or in any other court in the same county which is presided over by a judge who is permitted to practice law. To the extent that the “associate” is carrying on an independent practice, not as an employee of the part-time judge, he may appear before a judge of a court in another town, village or city who is permitted to practice law, but not in the court in which the part-time judge, with whom he is associated, is a judge.

         (c) The Committee declines to address second question as to a town justice arraigning a defendant outside the geographical jurisdiction of the justice court, because that question is not one of judicial ethics, but rather a legal question of jurisdiction, which is beyond the scope of the Committee’s authority to answer.

         This Opinion is advisory only and is not binding upon either the Office of Court Administration or the Commission on Judicial Conduct.