January 12, 1989
Topic: Practice of law by associates of part-time judges.
Digest: An associate of a law partnership that includes a part-time judge may appear before a judge in another town, village or city in the same county who is permitted to practice law, provided that the associate is appearing on his or her own behalf or on behalf of the partnership, rather than on behalf of the individual judge.
Rule: 22 NYCRR 100.5(f)
A village justice requests that the Committee clarify its interpretation of 22 NYCRR 1OO.5(f) as discussed in Opinion 87-10, which stated:
(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.
The inquirer, a part-time judge, is a member of a law partnership composed of three partners: there are four associates with the firm who are not the judge's personal employees, but are employees of the partnership. The matters which the judge supervises as a partner in the firm are not matters pending in the local Justice Courts which are presided over by judges who are permitted to practice law. The judge's partners, however, occasionally appear in these courts, and the associates with the firm handle matters in those courts and are supervised by the judge's partners. Neither the partners nor the associates ever appear in the court over which the judge presides.
The inquirer questions whether in these circumstances an appearance by an associate of the partnership in a court in the county (presumably in another town, village or city) presided over by a judge permitted to practice law is ethically permitted.
It is the opinion of the Committee that in such circumstances appearance by the associate in such a court in another town, village or city in the same county is ethically permitted and is governed by the general rule stated in Subdivision (a) of the above quoted Opinion 87-10 and does not come within the exception stated in the quoted Subdivision (b) thereof.