Can a lawyer who is regularly co-counsel with a part-time judge appear before other judges of that judge's court in unrelated cases?

Plain-English summary

A lawyer who was co-counsel with a part-time judge in numerous civil cases (pending in courts other than where the judge sits) asked whether the lawyer could appear before another judge of the part-time judge's court in matters where the part-time judge was not co-counsel. The committee answered that it depends on the nature of the relationship.

The committee traced a line of opinions holding it improper for an associate or partner of a part-time judge, or a lawyer merely sharing office space, to appear before any judge of the judge's court. It noted Judiciary Law 471 bars a law partner of, "or a person connected in the law business with," a judge from practicing in a court of which the judge is a member, language that reaches beyond formal partners and associates. Both that statute and Canon 6(B)(3) of the Code of Judicial Conduct also require a part-time judge to prohibit partners and associates from appearing before other judges of the judge's court. Because an appearance barred by Judiciary Law 471 would be illegal, and illegal conduct is unethical, the result turns on whether the co-counsel relationship makes the lawyer a partner, associate, or person connected in the law business.

The committee declined to answer that classification, calling it fact-intensive and largely a question of law beyond its jurisdiction, while noting that lawyers without formal partnership arrangements have been held to the same ethical standards as partners. It added that DR 5-105(D) (vicarious disqualification) is a separate consideration: although since the 1990 amendment a part-time judge's partners and associates are no longer automatically disqualified, vicarious disqualification may still be required on the particular facts, so the lawyer must assess each case and, when reason exists, may be disqualified, always avoiding a public perception that the administration of justice is not fairly and impartially served (Canon 9).

Currency note

This opinion was issued in 1998, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. The opinion also applied the Code of Judicial Conduct, which has since been revised. 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 Treat this page as historical context, not current guidance.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's co-counsel appear before other judges of that court?

A: The opinion concluded the lawyer may do so only if the co-counsel relationship does not make them partners, associates, or persons "connected in the law business" under Judiciary Law 471 and Canon 6(B)(3).

Q: What happens if the relationship does make them "connected in the law business"?

A: The opinion held that then the judge is ethically prohibited from letting the lawyer appear in the judge's court, including before its other judges, and the lawyer is prohibited from appearing.

Q: Is a part-time judge's partner automatically disqualified now?

A: The opinion noted that since the 1990 amendment to DR 5-105(D), vicarious disqualification is no longer automatic, but it may still be required on the particular facts of a matter.

Background and rules framework

The opinion interpreted DR 5-105(D) (vicarious disqualification) and Canon 9 of New York's former Code of Professional Responsibility, together with Judiciary Law 471 and Canon 6(B)(3) of the Code of Judicial Conduct (restrictions on the law practice of a part-time judge's partners and associates). The Model Rule analogues are Rule 1.10 (imputation of conflicts) and Rule 1.12 (former judge; relationships involving the judiciary). New York replaced the Code with the Rules of Professional Conduct in 2009; the DR number cited here is historical.

Citations and references

Rules of Professional Conduct:

• MR 1.10 (imputation of conflicts of interest)
• MR 1.12 (former judge, arbitrator, or third-party neutral)
• NY DR 5-105(D); Canon 9
• Code of Judicial Conduct Canon 6(B)(3)

Statutes:

• N.Y. Judiciary Law 471 (practice by a partner of, or person connected in the law business with, a judge)

Other opinions cited:

• N.Y. State 29 (1966); N.Y. State 65(a) (1970): associates and office-sharers of a part-time judge
• N.Y. State 609 (1990): whether lawyers are "partners" is largely a question of law
• N.Y. State 632 (1992); N.Y. State 654 (1993): case-by-case vicarious disqualification after 1990

See also

• NY State Bar Op. 699: A newly-elected judge selling a practice on a contingent price
• NY State Bar Op. 702: A county legislator practicing criminal law

Source

• Landing page: https://nysba.org/opinion-701/