Opinion 94-42

April 28, 1994

NOTE: This Opinion was overruled by 22 NYCRR 100.4(G) which provides as follows:

(G) Practice of Law. A full-time judge shall not practice law. Notwithstanding this prohibition, a judge may act pro se and may, without compensation, give legal advice to a member of the judge's family.

Digest:         A full-time judge may respond informally to questions from attorneys who are friends as to legal issues, if there is no attorney-client relationship or compensation, and if such comments do not constitute personal participation in the litigation.

Rule:            Canon 5(f), Code of Judicial Conduct; Opinion 92-18, Vol. X and 91-05, Vol. VII

Opinion:

         A full-time judge informs the Committee that periodically he is asked questions as to legal issues by friends, relatives, or attorneys with whom there has had a prior professional relationship or who are friends. In one instance, the attorney is a pro se litigant in another court. The judge is aware of Opinion 91-05, Vol. VII, which permits a judge to offer informal, uncompensated legal advice to a friend or relative when there is no attorney-client relationship, but asks whether a distinction is to be made where the person inquiring is an attorney.

         Based upon the facts presented, the Committee is of the view that informal discussions are permissible in the situations specified, assuming that there is not an attorney-client relationship and that there is no compensation. But the judge should avoid any activity that might constitute personal involvement or participation in the judicial process, e. g. revising or editing of briefs or affidavits, suggesting questions for cross-examination of a witness, critiquing a deposition transcript, etc. A distinction is to be made between informal comments and discussion of legal issues, and activities that amount to personal participation in a particular litigation. Thus, because of the danger of misuse and misapprehension of any statements the judge might make, caution and discretion should be exercised at all times. See Opinions 92-18, Vol. X and 91-05, Vol. VII.