Opinion 95-52

April 27,1995

[Comment: Former 22 NYCRR 100.5(f) has been amended and renumbered as 22 NYCRR 100.6(B)(2).]


Digest:         Where a part-time town justice has granted an order of protection to one spouse against the other, neither the justice nor his/her law firm may represent the complaining spouse in a subsequent divorce action.


Rules:          22 NYCRR 100.2; 100.5(f); Judiciary Law §§ 16, 17.


         A town judge, who practices law, had issued an order of protection in favor of a wife against her husband. The order is still in existence. The woman now has contacted the judge's law firm "to see if we will represent her in the divorce that she intends to commence." The judge seeks confirmation of his/her view that in the event a claim is made of a violation of the order of protection it must be referred to the other town justice, but asks "whether this firm should keep the appointment set for her and whether my associate or I may represent her."

         The Committee is of the opinion that in the event of a further proceeding relating to the order of protection, there must be recusal by the judge, and neither the judge nor the judge's firm may represent the party. Section 100.5(f) of the Rules of the Chief Administrator specifically states that a judge "shall not become engaged as an attorney in any court in any matter in which he or she has participated in a judicial capacity."

         Further, in our view, the firm should not represent the party in a prospective divorce action. Section 16 of the Judiciary Law states that "A judge shall not practice or act as an attorney or counselor in a court of which he is, or is entitled to act as a member, or in an action, claim, matter, originating in that court." Additionally, section 17 of the Judiciary Law bars a judge from acting "as attorney or counselor in any action, claim, matter, motion or proceeding, which has been before him in his official capacity." Although a divorce action would not be brought in the town court, the parties would be identical to those in the order of protection proceeding, and the issues involved in that proceeding are likely to be of significance in the conduct and possible outcome of a divorce action. Under such circumstances, neither the judge nor the judge's law firm may undertake representation in the divorce action.