NYSBA Ethics Opinion 39

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION
Professional Ethics Committee Opinion

Opinion #39 – 12/20/1966 (17-66)

Topic:  Conflict of Interest, Practice of Law by Part-Time Judge
Digest:  Part-time judge should not be employed in any matter which might be brought before court of which he is a member
Canon: Judicial Canon 31

QUESTION

The acting Judge of one of the City Courts, governed by the City Court Act, has made a practice of issuing summonses in collection matters in the City Court signed by her as attorney for the plaintiff.  If no one appears, a default judgment is entered and if someone appears and makes objection, she will have another lawyer substituted as attorney for plaintiff.  Is this practice proper?

OPINION

This Committee is of the opinion that the foregoing conduct is not professionally proper.   An acting City Court Judge is ethically barred from practicing in any fashion in any City Court, irrespective of who presides therein. Canon 31 of the Canons of Judicial Ethics specifically provides:”[A Judge] should not practice in the court in which he is a judge, even when presided over by another judge, or appear therein for himself in any controversy.”The purpose of this Canon is to preserve public confidence in the integrity of the courts.   A Judge should not be employed in any matters which might be brought before the court of which he is a member. See ABA Opinion No. 142.Canon 31 of the Canons of Judicial Ethics also provides:”If forbidden to practice law, [the Judge] should refrain from accepting any professional employment while in office,”This Committee does not pass on questions of law, but it may be helpful to call attention to the following:Section 16 of the Judiciary Law provides:”A judge shall not practice or act as an attorney or counsellor in a court of which he is, or is entitled to act as a member, or in an action, claim, matter, motion or proceeding originating in that court.”And Article IV, Section 20 of the Constitution of the State of New York provides in part:”A Judge… of a court for the City of New York established pursuant to section fifteen of this article who is elected or appointed after the effective date of this article may not:”(4) engage in the practice of law, act as an arbitrator, referee or compensated mediator in any action or proceeding or matter or engage in the conduct of any other profession or business which interferes with the performance of his judicial duties.”

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