Joint Opinion 88-17(a) and 88-25

March 14, 1988

NOTE: This opinion involves a case that "originated" in the judge's court, thereby implicating Judiciary Law §16. See, e.g.,  2012 Ann Rep of NY Commn on Jud Conduct, at 173-84; 2010 Ann Rep of NY Commn on Jud Conduct, at 67; 2003 Ann Rep of NY Commn on Jud Conduct, at 142; 1988 Ann Rep of NY Commn on Jud Conduct, at 133-43, and at 159-64.

For matters that do not originate the judge's own court, Opinion 08-132 approves a procedure by which a court clerk assigns all matters of an attorney who is also part-time judge to a full-time judge at the outset, so that he/she never appears before another lawyer-judge. (The general rule remains, however, that matters already assigned to a lawyer-judge may not be transferred solely for the purpose of permitting another lawyer-judge or his/her partners to continue to appear as the attorney in the matter.)

Topic:          Part-time lawyer-judge or partner of part-time judge appearing as attorney for a party in a civil or criminal matter initiated in the judge’s court but transferred to another court.

Digest:         A part-time lawyer-judge or a member or associate of the judge is prohibited from representing a party in a civil or criminal matter initiated in the judge’s court but transferred to another court.

Rules:          Judiciary Law sections 16, 17, 471; Code of Judicial Conduct, “Compliance” paragraph A(2); 22 NYCRR 100.5(f).

Opinion:

         Two part-time lawyer-judges have asked related questions of the Committee. (1) One judge inquires whether he and his partners are prohibited from representing parties in actions or proceedings initiated in his court but thereafter transferred to another court. The judge and his partners would not appear in any case in which the judge had acted personally, but if the matter came before a fellow judge in the same court or was initiated by the issuance of an appearance ticket, the judge’s firm would accept a retainer and move for a change of venue to another court. (2) The second judge inquires whether, in a two-judge court, if the defendant has not appeared in the matter before either judge, his law partner, representing the defendant, may apply to the County Court requesting transfer of the case to a different local court, if the District Attorney consents.

         The first practice appears to violate Section 16 of the Judiciary Law as interpreted by the Commission on Judicial Conduct in Matter of Bruhn (decided December 24, 1987).

         The Commission’s opinion states in part:

“Section 16 of the Judiciary Law prohibits a judge from practicing law ‘in an action, claim, matter, motion or proceeding originating in [his or her] court.’ Although neither the statute or case law define the term ‘originating’, we believe its meaning is clear: any claim or charge initiated in respondent’s court, whether or not he took any action on it, originated in his court.”

         Part-time judges should adhere to the Commission’s construction of the applicable statute. Accordingly, we recommend that the inquiring judge refrain from advising a party or appearing in any court representing a party in any matter which was initiated in the court in which he presides as judge, whether or not he personally participated therein.

         As to the second practice, it is clear that the cases in question are cases that should be heard by the judges of the subject lower court. The procedure that has been described avoids this. This procedure itself may well raise a question of impropriety. While technically, it could be argued that the method involved does not violate the Judiciary Law because thee was no appearance of the defendant, even if that were true, it still raises the question of the appearance of impropriety.

         The procedure outlined is tantamount to the action cited with disapproval by the Commission on Judicial Conduct in the matters of J. Michael Bruhn and Edward T. Feeney, dated December 24, 1987, because, although it clearly is a more complicated procedure and requires both the consent of the district Attorney and an order of a County Judge, it too creates the impression that the courts are being manipulated to benefit the practice of the judge in question, to the possible inconvenience of the parties, and to the burden of other courts that have to assume an additional case load. The procedure in question, requiring consents and court orders, appears to require an even greater degree of manipulation than that of the Bruhn and Feeney matters. It is a difference in form only, since, in substance, the appearance or impression of manipulation is at least as great. The procedure in question should be avoided by the part-time lawyer-judge for the greater good of the court system.

         If our opinion were any different it would sanction a procedure whereby justice courts could attempt to avoid the spirit of the rules and possibly create a situation wherein much of Town A’s contested case load would be heard in Town B, and much of Town B’s case load being heard in Town A, with the County Court being the conduit. Further, if the procedure in question were sanctioned, it might well spread throughout the State and cause great inconvenience to Courts involved in the system, to County Court Judges, District Attorneys, litigants and the public.

         For the purpose addressed by this Opinion, all members and associates of the judge’s law firm are equally proscribed from appearing.

         This opinion is advisory only and does not bind either the Office of Court Administration or the Commission on Judicial Ethics.