Opinion: 98-122
December 3, 1998
Digest:    A part-time judge who is an attorney may represent a litigant in an appeal from another local court in the county in which, under the circumstances, the judge is not permitted to practice law, notwithstanding that perfection of the appeal may require the filing of papers and other contacts with that local court.

Rule:    22 NYCRR 100.6(B)(2);
            Opinion 88-135 (Vol. III)


            A part-time town justice who is permitted to practice law, asks if it is permissible to represent an appellant in an appeal from another local court in the same county where the judge sits. The judges in the latter court are also part-time lawyer-judges and thus the inquiring judge is not permitted to practice in that court. 22 NYCRR 100.6(B)(2). Part of the appeal process includes the filing of papers in the trial court and possibly the correcting of a transcript or the settling of a return before the trial judge.

            The Rules Governing Judicial Conduct prohibit a part-time judge from practicing law in any court within the county, before a judge who is permitted to practice law. 22 NYCRR 100.6(B)(2). A part-time judge is not prohibited from practicing law presided over by full-time judges. Such practice is permissible even if the court is one that hears appeals from the judge's court. Opinion 88-135 (Vol. III).

            It is the opinion of this Committee that in the instant circumstances, the fact that in the course of perfecting the appeal there will be some minimal ministerial contact with the trial court and the possibility of some interaction with the trial judge in the settling of the transcript or return, should not be deemed to prohibit a part-time lawyer-judge from representing the party in the appeal before an appellate court. Of course, should the routine and formalized steps involved in perfecting the appeal somehow become matters of legal dispute in themselves requiring resolution by the trial court, a different result would seem appropriate.