Can a part-time municipal court judge share in the fees their law partners or associates earn from criminal matters in other counties?

Plain-English summary

A part-time municipal court judge with a private law practice asked whether Opinion 559 (1985), which barred the judge from sharing in fees generated by the firm's criminal practice, was still good law. The Committee reconsidered Opinion 559 and overruled it, holding that the judge may share in such fees.

The Committee started from the court rules. Rule 1:15-1(b) bars a part-time municipal court judge from practicing in any criminal, quasi-criminal, or penal matter. Rule 1:15-4(b) extends that bar to the judge's partners and associates, but only in the county where the judge's court sits, so partners and associates may handle criminal and motor-vehicle matters in other counties. Those rules are silent about how the firm allocates the fees from that out-of-county criminal work.

Opinion 559 had rested on the appearance of impropriety: allowing the judge to share in the fee could lead the public to believe the judge's firm had an advantage. The Committee noted that the appearance-of-impropriety doctrine was deleted from the Rules of Professional Conduct in 2004. It also pointed to RPC 1.10: a lawyer disqualified by a personal interest is screened but not necessarily barred from sharing in the fee (RPC 1.10(a)), while a side-switching lawyer is expressly apportioned no part of the fee (RPC 1.10(c)). The judge's situation resembles the screened-personal-interest case, not the side-switching case.

The Committee reasoned that because Rule 1:15-4(b) already lets the judge's firm appear in out-of-county criminal matters openly (including on letterhead bearing the judge's name), it could not rationalize why the internal allocation of the fee, by itself, would create a public perception of unfair advantage. Citing the Supreme Court's instruction in In re Opinion No. 17-2012 that restrictions on practice must rest on solid facts rather than the "mere possibility" of harm, the Committee overruled Opinion 559.

In practice

The opinion holds that, under the New Jersey rules and court rules as they stood at the time, a part-time municipal court judge may share in fees their partners or associates generate from criminal, quasi-criminal, or penal matters outside the county where the judge sits. Per the opinion, the analysis turns on the 2004 deletion of the appearance-of-impropriety doctrine and on RPC 1.10's distinction between a screened personal-interest conflict (no express fee bar) and a side-switching conflict (express fee bar). The judge's own practice in criminal matters remains prohibited by Rule 1:15-1(b); only the internal sharing of the partners' or associates' out-of-county criminal fees is permitted.

Common questions

Q: Can a part-time municipal court judge personally handle criminal cases?

A: No. Rule 1:15-1(b) bars a part-time municipal court judge from practicing in any criminal, quasi-criminal, or penal matter. This opinion addresses only fee sharing, not the judge's own practice.

Q: Can the judge's partners and associates handle criminal cases?

A: Yes, but only outside the county where the judge sits. Rule 1:15-4(b) extends the criminal-practice bar to partners and associates only within the judge's county.

Q: Does Opinion 559 still control?

A: No. The Committee overruled Opinion 559, holding that a part-time municipal court judge may share in fees their partners or associates earn from out-of-county criminal matters.

Background and rules framework

The opinion applies RPC 1.10 (imputation of conflicts; cf. Model Rule 1.10), distinguishing RPC 1.10(a) (a lawyer screened for a personal-interest conflict is not expressly barred from the fee) from RPC 1.10(c) (a side-switching lawyer is apportioned no part of the fee). It construes Rule 1:15-1(b) and Rule 1:15-4(b) of the Rules Governing the Courts of New Jersey, which restrict the criminal practice of part-time municipal court judges and their firms. The Committee relied on the 2004 deletion of the appearance-of-impropriety doctrine and on In re Opinion No. 17-2012.

Citations and references

Rules of Professional Conduct:

• RPC 1.10(a) (imputation; screening for personal-interest conflicts); cf. Model Rule 1.10
• RPC 1.10(c) (side-switching lawyer apportioned no part of the fee)

Court Rules:

• Rule 1:15-1(b) (part-time municipal court judge may not practice in criminal, quasi-criminal, or penal matters)
• Rule 1:15-4(b) (partners and associates barred only in the judge's county)

Cases:

• In re Opinion No. 17-2012 of the Advisory Committee on Professional Ethics (N.J. July 2, 2014), restrictions on practice require solid facts, not the "mere possibility" of harm

Other opinions cited:

• ACPE Opinion 559 (1985): overruled by this opinion
• ACPE Opinion 359 (1976): municipal court judge sharing office space with a municipal prosecutor

See also

• NJ ACPE Op. 559: Associate of Municipal Judge Sharing Criminal Fees
• NJ ACPE Op. 717: Contingent Fees in Quasi-Criminal Municipal Court
• NJ ACPE Op. 167: Municipal Judge Representing Developers

Source

• Landing page: https://www.njcourts.gov/sites/default/files/notices/2014/09/n140925a.pdf
• Original PDF: https://www.njcourts.gov/sites/default/files/notices/2014/09/n140925a.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Issued by ACPE September 24, 2014

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the Supreme Court of New Jersey

OPINION 728

Municipal Court Judges Who Engage in Private Practice of Law May Share in Legal Fees Generated by Partners or Associates in Out-of-County Criminal Matters; Superseding Opinion 559

The Advisory Committee on Professional Ethics received an inquiry from a part-time municipal court judge who has a private law practice with one associate. The associate represents defendants in criminal and motor vehicle matters in counties other than the county in which the municipal court judge sits. ACPE Opinion 559 (1985) states that the municipal court judge may not share in any fees generated by the firm's criminal practice. Inquirer asked if this prohibition is still good law.

Rule 1:15-1(b) provides that a lawyer who is a part-time municipal court judge "shall not practice in any criminal, quasi-criminal or penal matter . . . ." Rule 1:15-4(b) provides that partners and associates of lawyers who are part-time municipal court judges are similarly prohibited from practicing in any criminal, quasi-criminal, or penal matter but the prohibition extends only to the county in which the court of the municipal court judge is located. Accordingly, partners and associates of lawyers who are part-time municipal court judges may represent defendants in criminal and motor vehicle matters in counties other than the county in which the municipal court judge sits.

In Opinion 559, the Committee found that the part-time municipal court judge could not share in fees generated by the partner or associate's criminal practice. The Committee reasoned: "To permit the sharing of such fees would nullify the whole purpose of the Rule. Such conduct could easily lead to the belief that, while the associate is practicing criminal law outside of the county in which the judge sits, nevertheless, his association with the judge and the latter's relationship with other judges hearing criminal court matters might give some advantage to the judge's partner or associate." The Committee further relied on Opinion 359 (1976), concerning a municipal court judge sharing office space with a municipal prosecutor. The municipal prosecutor can practice criminal defense law in other counties. The Committee found that it would be improper for the two lawyers to share office space because the judge would share in, or benefit from, "the fees from practice forbidden him under the rule." The findings in these Opinions are clearly based on the appearance of impropriety; sharing in fees could lead people to believe that the judge's associate has an advantage in the case. The appearance of impropriety doctrine, however, was deleted from the Rules of Professional Conduct in 2004.

The Committee now reconsiders the reasoning of Opinion 559. The starting point is Rule 1:15-1(b), which prohibits part-time municipal court judges from engaging in a criminal or quasi-criminal practice, and Rule 1:15-4(b), which permits a municipal court judge's partner or associate to engage in a criminal practice in counties other than that in which the judge sits. These Rules are silent regarding the allocation of fees within the firm generated by the criminal practice of the partners and associates.

While conflicts of one lawyer are generally imputed to the entire firm, Rule of Professional Conduct 1.10(a), there are situations where one lawyer in a firm is prohibited from representing a client in a matter while other lawyers in the firm may do so. A lawyer who is disqualified from representing a client due to a personal interest is screened from the case but is not expressly prohibited from sharing in the fee earned by the firm. RPC 1.10(a).

In contrast, Rule of Professional Conduct 1.10(c) expressly prohibits a lawyer from sharing in fees generated by the firm's representation of clients in certain matters. Specifically, a lawyer who switches firms and is prohibited from representing a client at the new firm, because the lawyer's former firm represents the adverse party in the same matter, can be "apportioned no part of the fee" generated by the new firm's continuing representation of its client. RPC 1.10(c)(2). Side-switching lawyers are treated differently; the client presumably is comforted by the fact that the lawyer who previously worked at the adverse firm is screened from the case and is apportioned no part of the fee.

The Committee, in Opinion 559, reasoned that if the disqualified lawyer, the municipal court judge, shared in the fee, the public would believe that the firm has an advantage in these out-of-county criminal matters. But Rule 1:15-4(b) allows the judge's law firm to appear in such matters. The lawyer handling the matter uses letterhead presumably listing the judge's name as associated with the firm; the judge may even be a name partner in the firm. Rule 1:15-4(b) does not require that the judge's association with the lawyer appearing in the case be hidden. The Committee finds it difficult to rationalize why the internal allocation of fees, by itself, would cause the public to believe that the law firm has an undue advantage in such cases. The Committee cannot, as it did in Opinion 559, rely on the appearance of impropriety to support a restriction on sharing of fees within a law firm in these circumstances.

The Committee has recently been instructed by the Supreme Court that prohibitions on the practice of law must be supported by solid, sensible facts and the Committee should not rely on the "mere possibility" of harm to support a restriction. In re Opinion No. 17-2012 of the Advisory Committee on Professional Ethics, __ N.J. __ (July 2, 2014) (2014 N.J. Lexis 652, p. *34). The Court, by Rule, permits a partner or associate of a part-time municipal court judge to represent a client in a criminal matter outside the county, even though such practice arguably may lead some people to believe that the lawyer in the judge's law firm has an advantage in the case. The internal allocation of the fee amongst the lawyers in the firm does not, by itself, spark a public perception that the representation by the judge's partner or associate is unfair.

Accordingly, the Committee hereby overrules Opinion 559. Part-time municipal court judges may share in fees generated by their partners or associates who represent parties in criminal, quasi-criminal, or penal matters outside the county in which the judge sits.