Can a New York lawyer appear before a judge when the lawyer's part-time secretary also works for a related judge on the same court?

Plain-English summary

A lawyer's son was one of two full-time City Court judges (the "related judge"); the other judge was unrelated. The related judge was permitted to hire a part-time secretary for his personal matters, and the lawyer wanted to employ that same secretary part time in the law office. The secretary would not work on any files of the unrelated judge. The lawyer asked whether he could appear in the court before the unrelated judge under that arrangement.

The opinion concludes that a lawyer's family relationship with one judge does not automatically preclude the lawyer from appearing before a different judge of the same court, and that sharing an employee with the related judge does not change that result. Drawing on N.Y. State 548 (1983), the committee treated the propriety of the appearance as primarily a question of judicial disqualification for the judges, not an automatic disqualification of the lawyer. None of the Rules specifically prohibits the contemplated employment arrangement; Rule 8.4(f) reaches a lawyer's conduct toward a judge only when the lawyer knowingly assists the judge in violating judicial-conduct rules or other law.

The opinion identifies two conditions the lawyer must satisfy. Under Rule 1.6(c), the lawyer must exercise reasonable care to prevent the shared secretary from disclosing or using client confidential information, which may call for tailored instructions when the secretary works on a matter before the unrelated judge or a related matter elsewhere (the opinion also cites Rule 5.3(a) on the degree of required supervision). Under Rule 8.4(e)(1), the lawyer must not state or imply an ability to influence the court improperly, for example by gratuitously mentioning during negotiations that the lawyer's son is a judge of that court or that the secretary also works for that judge.

In practice

Under this opinion, a lawyer is not automatically disqualified from appearing before one judge of a multi-judge court merely because the lawyer is related to a different judge of that court or shares a part-time employee with that judge. The opinion makes the analysis fact-specific: the appearance was permitted on the represented facts (the secretary would not touch the unrelated judge's files), but the committee noted that additional factors in a particular case could weigh against the appearance. The two affirmative duties the opinion identifies are protecting client confidences when an employee also works in another office and avoiding any statement implying improper influence over the court.

Common questions

Q: Does a lawyer's relationship to a judge automatically disqualify the lawyer from appearing in that judge's court?

A: No. The opinion concludes that a familial relationship with one judge does not automatically preclude appearing before a different judge of the same court; whether disqualification is required is analyzed as a judicial-conduct question for the judges and depends on the facts.

Q: Can a lawyer and a judge employ the same part-time secretary?

A: On the facts presented, yes. The opinion found no Rule specifically prohibiting the shared employment, where the secretary would not work on the unrelated judge's files, so long as the lawyer meets the confidentiality and no-influence duties below.

Q: What must the lawyer do to protect client confidences?

A: Under Rule 1.6(c), the lawyer must exercise reasonable care to prevent the shared secretary from disclosing or using client confidential information, which the opinion says may require specific instructions when the secretary works on a matter before the unrelated judge or a related matter in another court.

Q: Can the lawyer mention the judicial connection during a negotiation?

A: No. Rule 8.4(e)(1) bars stating or implying an ability to improperly influence a tribunal; the opinion gives the example that the lawyer should not gratuitously tell other parties that the lawyer's son is a judge of the court or that the shared secretary works for that judge.

Background and rules framework

The opinion applies New York Rule 1.6(c) (a lawyer must exercise reasonable care to prevent the lawyer's employees from disclosing or using client confidential information; corresponding to Model Rule 5.3 on responsibilities for nonlawyer assistance) and Rule 8.4(e)(1) (a lawyer shall not state or imply an ability to influence improperly a tribunal or public official; corresponding to Model Rule 8.4(e)). It also discusses Rule 8.4(f) (knowingly assisting a judge in conduct violating judicial-conduct rules) and Rule 5.3(a) (degree of supervision over nonlawyers). The committee relied on its earlier treatment of a lawyer appearing before a judge whose confidential law assistant was the lawyer's spouse in N.Y. State 548 (1983).

Citations and references

Rules of Professional Conduct:

• New York RPC 1.6(c) (reasonable care to prevent employee disclosure of confidential information; cf. Model Rule 5.3)
• New York RPC 8.4(e)(1) (no stating or implying improper influence; cf. Model Rule 8.4(e))
• New York RPC 8.4(f) (knowingly assisting a judge in violating judicial-conduct rules)
• New York RPC 5.3(a) (supervision of nonlawyers)

Other opinions cited:

• N.Y. State 548 (1983): lawyer appearing before a judge whose confidential law assistant was the lawyer's spouse
• N.Y. State 725 (1999): prosecutor may not appear before a sibling Town Justice

See also

• NY State Bar Op. 1115: Public Defender Appearing Before a Colleague Judge
• NY State Bar Op. 1243: Public Defender Related to a Part-Time Judge
• NY State Bar Op. 1064: Former-Judge Conflict and Firm Screening

Source

• Landing page: https://nysba.org/ethics-opinion-995/