Can a part-time administrative law judge refer out and collect a fee on a lawsuit against the government arm that enforces the judge's own rulings?

Plain-English summary

The inquirer was a per diem administrative law judge for the New York City Parking Violations Bureau (PVB), adjudicating parking tickets one-third of the time and practicing law otherwise. A prospective client said he had been assaulted and injured by people acting for the Office of the Sheriff while they seized his car over unpaid parking judgments. The inquirer had done a preliminary investigation and wanted to refer the matter to litigation counsel and collect a referral fee or a fee for work already done. The committee answered that he could not, applying both the Code of Judicial Conduct and the Code of Professional Responsibility, which together govern a part-time judge who also practices.

On the fee mechanics, the committee explained that under DR 2-107(A) a lawyer cannot accept a fee for a bare referral; any fee must satisfy DR 2-107(A)(2), meaning a fee for prior work must bear a reasonable relationship to the services rendered in the matter as a whole, and a fee tied to the recovery requires the inquirer to continue participating by assuming joint responsibility or actually rendering legal services. But the committee found a deeper bar. Because the inquirer is a judicial officer in the same parking enforcement system in which the Sheriff collects on his judgments, his involvement in a suit against the Sheriff would generate at least the appearance of a conflict of interest. It drew on judicial-ethics authority, including 22 NYCRR 100.5(b) and Advisory Committee on Judicial Ethics opinions barring a part-time judge from taking a fee in a matter that originated in his court or appearing before related municipal boards, all grounded in CJC Canon 2's requirement that a judge promote public confidence in the integrity and impartiality of the judiciary.

The committee was careful to limit its holding. It noted the likelihood of actual conflict was small, that its conclusion does not bar the inquirer from a broad civil and criminal practice or from suits against the City or Sheriff arising in unrelated circumstances, and that the inquirer could still give the prospective client the name of another lawyer. Balancing the hardship to the judge against the goal of preserving an impartial adjudicative process, it concluded that participation in this particular suit, connected to the parking-enforcement system, would not promote public confidence and was therefore improper.

Currency note

This opinion was issued in 1994, before New York replaced the Code of Professional Responsibility (the Disciplinary Rules cited here) with the New York Rules of Professional Conduct, effective April 1, 2009, and the judicial-conduct rules have also been renumbered and revised. Fee division is now addressed by Rule 1.5 and conflicts by Rule 1.7, with judicial conduct governed by the current Rules Governing Judicial Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a part-time judge take a referral fee on a matter that touches his own court's enforcement system?

A: The committee concluded no, because the inquirer's role in the parking-enforcement system in which the Sheriff collects his judgments creates at least an appearance of conflict and partiality that bars his participation and any fee.

Q: Can a lawyer ever take a fee for just referring a case out?

A: The committee explained that under DR 2-107(A) a lawyer cannot accept a fee for a bare referral; a fee must reflect work actually done in proportion to the whole matter, or require continued joint responsibility or services if tied to the recovery.

Q: Does it matter that the lawsuit would not name the parking bureau itself?

A: No. The committee concluded that the action's link to the Sheriff's enforcement of parking judgments was enough to create the conflict, even though the bureau would not be a named party.

Q: Can the judge still refer the client to another lawyer?

A: The committee concluded the inquirer may give the prospective client the name of a lawyer capable of handling the matter without violating the duties discussed, and remains free to maintain a broad practice.

Background and rules framework

The opinion applied New York Code DR 2-107(A) and DR 2-107(A)(2) (division of fees among lawyers), together with the Code of Judicial Conduct, principally Canon 2 (promoting public confidence in the integrity and impartiality of the judiciary), and 22 NYCRR 100.5(b) and 100.2 (part-time judge employment and avoiding the appearance of impropriety). The fee-division analysis corresponds to ABA Model Rule 1.5(e) and the conflict analysis to Model Rule 1.7.

Citations and references

Rules of Professional Conduct:

• New York Code DR 2-107(A), DR 2-107(A)(2) (division of fees)
• Code of Judicial Conduct Canon 2; 22 NYCRR 100.5(b), 100.2
• MR 1.5 (fees, including division of fees); MR 1.7 (concurrent conflicts of interest)

Other opinions cited:

• N.Y. City 894: standards for a lawyer representing the City pro bono while opposing it elsewhere
• N.Y. Advisory Committee on Judicial Ethics 88-108, 90-59, 90-65, 91-29: limits on part-time judges' outside practice
• N.Y. State 447 (1976), N.Y. State 632 (1991): treating a single agency, not the whole government, as the client

See also

• NYC Bar Formal Op. 1993-2: Contingent Fees in Will Contests
• No sibling opinions yet indexed.

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-1994-2-part-time-administrative-law-judge-conflict-of-interest/