This page is designed for new full-time judges, as it provides links to some published opinions on various issues relating to winding down your law practice. The digest (or summary of question presented) is intended to help you determine whether the opinion may be relevant to an issue you are facing. Please click through and do not rely exclusively on the digests below, as the full opinions typically contain additional explanations and guidance.
Part I addresses many general issues concerning winding down; Part II focuses on disqualification issues for new full-time judges who were previously in private practice; Part III discusses when a new judge is subject to Part 100.
Within each section, opinions are listed in reverse chronological order.
I. Winding Down - General
22-174 (1) At this time, the remaining duties described are not ministerial, as this specific matter remains open and pending in significant respects until and unless the judge receives information indicating that the former client has either consulted with an attorney or has refused to do so. (2) Thereafter, if the former client wishes to proceed with the settlement as negotiated before the judge assumed full-time judicial office, the judge may complete the remaining ministerial functions necessary to finalize the settlement and collect previously earned legal fees.
22-157 Where the remaining tasks are essentially ministerial and do not involve legal work, a new full-time judge may complete their service as a referee in foreclosure, pursuant to a court appointment that was made before the judge assumed the bench. Thus, the judge may, if necessary, conduct closings after January 1st, hold the proceeds in escrow pending a court order directing their release, and seek a court order regarding disposition of unresolved monies remaining in an escrow account.
22-86 A new full-time judge may submit vouchers for legal fees earned for work performed as assigned counsel prior to assuming the bench.
22-15(A) A new full-time judge may (1) maintain a mailbox at their prior office address; (2) dispose of wills prepared while an attorney, as permitted by law; and (3) be reimbursed for expenses incurred before assuming the bench while handling a matter as an attorney.
22-07 A new full-time judge (1) need not file a disclosure with the court clerk under 22 NYCRR 100.4(H) for income earned before assuming the bench; (2) may make a modest donation to an animal shelter on behalf of a former client in connection with the closing of the judge’s law practice; (3) may give another judge an artwork created by a former client.
21-17 Where a new full-time judge was previously a law firm partner and took a loan from the firm’s 401(k) profit sharing plan, the judge may remain in the plan temporarily in order to pay back the loan and receive the plan’s annual employer matching contribution based on the judge’s prior legal work and earnings. The judge must continue to disqualify from matters involving the former firm and the judge’s former partners and associates during this period and for two years after the financial relationship completely terminates.
21-13 A new full-time judge may engage in activities designed to wind down their prior law practice and collect previously earned legal fees, including billing an assigned counsel program for services “as an attorney” and complying with the requirements of a state administrative agency to obtain payment on previously awarded legal fees.
20-174 A full-time judge (1) may not serve as power of attorney for an elderly former client, unless the judge maintained a “longstanding personal relationship of trust and confidence” with them and obtains written permission from the Chief Administrative Judge. [...]
20-204 As you assume full-time judicial office: 1. Must you pay to have your name removed from the glass of the shared suite in which you previously practiced law? 2. Assuming you may no longer serve as a notary public, is it sufficient, from an ethics perspective, to simply cease notarizing documents - or must you also give notice to the state about terminating your notary public status? 3. May you, after assuming full-time judicial office, collect a legal fee on a matter that is being handled by another attorney, where any legal fees are contingency-based and you are “expecting a fee once a settlement is reached”?
19-148(B) (1) A judge may collect fees for legal work done before taking full-time judicial office, only if the fee arrangement is otherwise proper. [...]
18-22 A new full-time judge who previously served as guardian ad litem in a federal case may (1) voluntarily provide a factual statement or affidavit about his/her former service as guardian ad litem; (2) respond to the federal judge’s questions about whether a new guardian ad litem should be appointed; and (3) appear pro se concerning his/her fees for work previously performed as guardian ad litem.
17-175 Does a new full-time judge have any obligation under Part 100 to a former client after returning their trial file to them?
17-157 May a new full-time judge undertake the following activities in connection with closing the judge's private practice: file a closing statement with OCA in one action and have releases signed and mailed; deposit the settlement check; distribute the client’s portion of the settlement proceeds; and file a closing statement in the other action?
17-33 May a new full-time judge complete their service as executor of a former client’s will by signing a deed necessary to transfer title to an heir, where the judge was "unable to previously transfer title because the heir was a minor"?
16-164 A new full-time judge may continue to serve as a receiver in foreclosure pursuant to an appointment received before assuming the bench, provided his/her duties are ministerial in nature and completed within one year, if possible.
16-63 (1) A non-judge appointed to a judgeship is not subject to the Rules Governing Judicial Conduct until her/his term starts and he/she assumes judicial office by signing and filing the oath of office.
15-128 A full-time judge whose former law partner is temporarily unavailable for medical reasons may accept and deposit fees, issue checks to clients and the firm and pay expenses as necessary to wind up the law firm’s affairs, until the partner recovers or new counsel is hired but may not use law firm letterhead after assuming judicial office.
15-126 (1) A full-time judge may accept compensation for legal or fiduciary services he/she performed before assuming the bench.
15-19 A full-time judge who asked his/her former law firm in writing to immediately remove the judge’s name from the firm’s signage, letterhead, and other materials need not take any further action.
13-181 May a judge continue to receive health insurance benefits from their former public sector employer to cover the gap in coverage before their new health benefits commence?
13-164 A newly elected full-time judge, who was involved in two final accountings as a court-appointed fiduciary before assuming the bench, may respond to requests from the appointing court for additional information or revisions and may contact the appointing court to determine the status of a previously requested order, but must complete his/her service or secure a substitute within one year after assuming the bench, if possible.
13-08 May a new full-time judge be credited as an author of an appellate brief?
12-179 Excerpt: The Committee notes that the judge should, if applicable, comply with the provisions of 22 NYCRR §603.7 and/or 22 NYCRR §691.20 (retainer and closing statement filing requirements).
11-21 Under the circumstances presented, a recently-elected judge may accept a discretionary bonus paid by his/her law firm based on work actually performed by the judge before he/she assumed judicial office.
11-07 May a judge execute a final accounting affidavit relating to work which they performed as a receiver prior to taking judicial office and seek a statutory commission for those services?
10-203(B) (1) A judge may continue to serve as trustee of a trust that benefits the judge’s first cousin.
10-183 May you complete your responsibilities as a referee in a foreclosure pursuant to an appointment made before you assumed the bench?
10-169 May you complete certain necessary tasks to terminate two conservatorships that you held before taking the bench? (In one case, the final ex-parte order to discharge you as conservator and to cancel your bond was never filed and a nominal amount of money was never disbursed. In the other case, an affidavit of lateness was never filed and the matter is still pending. Also, a conservatorship account remains open with funds still on deposit.)
10-139 May a new full-time judge continue to receive money from the Sheriff’s Office regarding wage garnishments for former clients?
10-47 May a new full-time judge prepare and submit an application to be discharged from their duties as guardian for an incapacitated person together with the final accounting in a Supreme Court proceeding?
06-116 A full-time judge who had been appointed a guardian ad litem before assuming judicial office may not complete work on settlement papers that was begun before the judge took office, where, under the circumstances presented, such work would constitute the practice of law.
06-57 A full-time judge may complete the ministerial function of executing an application for a certificate of deposit necessary to effectuate the results of a determination made by the judge while serving as a referee before the judge assumed the bench.
05-130(A) A full-time judge must withdraw from client representation and cease accepting new clients before assuming office January 1 after the judge’s November election. The professional corporation constituting the judge’s solo law practice may remain in existence with the judge as shareholder, but solely for the purpose of winding up its affairs, including collecting fees, including contingency fees, sending periodic bills to former clients, maintaining an escrow account to process fees, and submitting final corporate income tax returns reflecting income earned before assuming office. The judge must dissolve the corporation as soon as practicable after assuming office and may not transact corporate business after December 31, except activities necessary for its dissolution. During that time, and notwithstanding consent, the judge may not preside over any matter in which the judge’s former associates appear. [...]
04-137 (1) Prior to assuming office, a newly-elected judge must forward any money held in escrow on behalf of clients to the new attorneys who will represent those clients. (2) A judge may continue to process settlement checks from cases settled prior to the beginning of the judge’s term of office but received after that time, and may sign a closing statement in such matters after assuming judicial office. (3) A judge may keep the judge’s law firm open for two months after the judge assumes judicial office to avoid a lapse in health insurance coverage, but during that period is disqualified from presiding over any matter in which the judge’s former partners appear even if all parties consent. (4) A judge assumes office upon taking and filing his/her oath of office. (5) A judge must arrange for new counsel to handle any outstanding motions scheduled to be heard after the judge assumes judicial office.
04-127 A judge may continue the judge’s investment in a 401K Profit Sharing Plan that was offered by the judge’s prior law firm and that is now managed by a successor law firm where the judge will not make additional contributions to the Plan; will have no involvement in managing the Plan; and will exercise recusal in any case where a party is represented by the law firm managing the Plan.
03-37 A full-time judge may perform the ministerial act of executing new documents to replace those the judge had signed as a referee in a mortgage foreclosure action prior to assuming the bench.
02-37 A judge may not accept an appointment to serve as a fiduciary, for compensation under Article 81 of the Mental Hygiene Law, but it would not be unethical to continue to serve in such capacity pursuant to a court appointment made prior to the judge assuming the bench.
00-77 A newly-appointed full-time judge may not practice law but may write to former clients to inform them that the law practice has been discontinued, and how they may retrieve their wills and other legal documents.
00-03 A newly-elected full-time judge may receive compensation for the equity value of the judge’s share in a law partnership that is dissolving as a result of the judge’s election, as determined in accordance with generally accepted accounting principles.
99-76 Under the circumstances presented, a full-time judge may perform certain ministerial tasks necessitated by the judge’s status as executor of an estate that was completed before becoming a judge, without first seeking the approval of the Chief Administrative Judge.
97-148 A full-time judge is not required to file a report under section 100.4(H) of the Rules Governing Judicial Conduct with respect to compensation received for legal services rendered and real property conveyed prior to the judge’s assuming judicial office.
97-27 May a new full-time judge write to the Surrogate’s Court, advising the court that, as a full-time judge, they may not take any further action regarding an estate of a former client?
97-09 A recently appointed full-time judge may remain a shareholder of the professional corporation under which the judge practiced law solely for the purpose of winding up the affairs of the professional corporation, which the judge must dissolve as soon as is practicable after assuming judicial office.
96-141 (1) A newly-elected judge, who had been serving as an Administrative Law judge for a governmental agency, may not, upon assuming judicial office, perform any further services in connection with any pending, uncompleted matters that were being handled as an Administrative Law judge. (2) A full-time judge may not practice law in New York or in any other jurisdiction. (3) A newly-elected full-time judge must terminate his/her law practice, including properly disposing of escrow accounts being held on behalf of clients.
96-91 A newly appointed part-time City Court judge (1) is entitled to recover disbursements and share in legal fees for services rendered in a pending litigation commenced prior to assuming judicial office.
95-123 (2) Receipt of fixed severance payments from the judge’s former law firm over a five year period is ethically permissible.
95-39 A recently elected full-time judge who had been appointed as conservator for an incompetent, as a matter of necessity may continue to perform [ministerial] services until a successor or interim conservator is appointed, but must move promptly for the appointment of a substitute.
95-12 A full-time judge who took office on January 1, 1995, may supervise the winding up of the affairs of a prior law practice by, inter alia, sending periodic bills to former clients and maintaining an escrow account for the processing of fees earned prior to January 1, 1995, but not currently payable.
94-18 A full-time judge may remain a shareholder of the professional corporation under which he/she practiced law, solely for the purpose of winding up its affairs.
93-84 Without the approval of the Chief Administrator of the Courts, a full-time judge may not serve as an executor of an estate of a non-relative or as a testamentary trustee for former clients.
93-44 A newly-elected judge may collect a percentage of a contingency fee awarded to the judge’s former law partners for work performed prior to assuming office, provided the contingency fee arrangement is otherwise proper.
90-203 May a new full-time judge continue to (a) collect rent from attorneys to whom they lease office space, (b) pay rent to their landlord until the lease expires in several months, (c) collect fees for legal services which they rendered prior to assuming judicial office, and (d) retain a paid staff in their former law office for a specified period for billing purposes?
90-86 A co-executor under a will, who becomes a full-time judge when administration of the estate has almost been concluded, but has not yet been concluded, must resign as co-executor.
89-136 Prior to assuming judicial office, a [newly elected full-time] judge must terminate [his/her] law practice and remove [his/her] name from the masthead[.]
89-134 A newly-elected judge may collect legal fees earned prior to assuming the office, and may work out any fair arrangement with [his/her] former law firm to handle the bookkeeping expenses.
89-38 Full-time judge may not complete unfinished legal services performed for an estate before the judge assumed judicial office, although no court appearances are necessary and the remaining tasks are more ministerial than legal in nature.
II. Miscellaneous Disqualification Issues for New Full-Time Judges
A judge is permanently disqualified from presiding in a case if the judge previously had any involvement in that matter as a lawyer, whether personally or as a supervisor, no matter how minor. Disqualification on this ground cannot be waived or remitted.
In other matters, where the judge had no prior involvement as a lawyer, obligations with respect to former clients, former colleagues, or former employers depend on the circumstances, often including the passage of time. The opinions mentioned below address only a few common scenarios.
22-39 (1) A judge-elect who will preside in many cases involving a city may permit the Corporation Counsel to administer their oath of office. (2) A judge’s social relationship with the Corporation Counsel does not, without more, require disqualification or disclosure when the assistant’s corporation counsel or other subordinates appear before the judge.
18-171 (1) Where a law firm is retained by a full-time judge’s first-degree relative to wind up the affairs of their former joint law practice at the conclusion of a highly confidential representation that directly affected both their interests as former law partners: (a) The judge is disqualified, subject to remittal, in all matters involving this law firm during the pendency of the representation. (b) For the first two years after the representation completely terminates and all fees are paid: (i) the judge is disqualified, subject to remittal, from all matters involving attorneys who were personally involved in the representation and (ii) the judge must make full disclosure of the former representation when other attorneys from the law firm appear, in lieu of outright disqualification.
18-118 Where a full-time judge was formerly an equity partner in a large law firm, and will receive life-long annual retirement benefits from the firm, but those retirement benefits are effectively “fixed” on a particular date rather than tied to the firm’s ongoing profits: (1) the judge is permanently disqualified, without the possibility of remittal, from all cases in which the judge had any personal involvement as a lawyer; (2) the judge is disqualified, subject to remittal, from all cases involving the law firm as long as he/she continues to receive retirement benefits from the firm; (3) the judge need not consult the firm’s conflict databases to determine whether a litigant is a current or past client of the law firm; (4) the judge is disqualified, subject to remittal, from all cases involving litigants the judge recognizes as current clients of the firm as long as he/she continues to receive retirement benefits from the firm; (5) for two years from the date the retirement benefits are effectively “fixed,” the judge is disqualified, subject to remittal, from all cases involving litigants the judge recognizes as past clients of the law firm.
18-46 Where a full-time judge and his/her former law firm have an ongoing financial relationship after the judge assumes the bench, the judge is disqualified, subject to remittal, when a client or former client of the firm appears before the judge. The obligation continues until two years after that relationship completely ends, including return of any distributed capital to the judge. After the two-year period, the decision of whether to disclose or recuse is confined solely to the judge’s discretion, after considering all relevant factors. (Note: Modified by 18-118)
18-31 A new Surrogate’s Court judge who sold his/her cabinet of wills to an attorney for a one-time payment: (1) may not preside in any cases involving the purchased wills and (2) is disqualified, subject to remittal, in all other cases involving the attorney for two years following the payment for the files. During the two-year disqualification period, the judge may not preside in any uncontested cases involving the attorney who purchased the wills, as remittal would not be possible.
17-143 (1) A judge who co-owns real property with an attorney is disqualified, subject to remittal, from cases in which that attorney appears, for the duration of the co-ownership relationship and for two years after it completely terminates. (2) Where the co-ownership interest is not likely to result in frequent disqualification, the judge need not divest him/herself of the interest. (3) The judge may accept rent from an attorney tenant, but must disqualify him/herself, subject to remittal, for the duration of the landlord/tenant relationship. This obligation ends when the landlord/tenant relationship completely terminates. (4) Transfer of the judge’s interest to his/her spouse or close family member slightly diminishes, but does not end, the judge’s obligations: The judge is disqualified, subject to remittal, when the attorney co-owner appears before the judge as an attorney or a party, but not when he/she appears as a witness. (5) Transfer of the judge’s interest to a third party who is not a member of the judge’s family constitutes divestment of the judge’s interest. Thus, the judge is disqualified, subject to remittal, whenever the former co-owner appears for two years from the date the former co-ownership relationship completely terminates, meaning after the sale is complete and final payment has been made. After the two-year period, the judge has no further obligation.
14-13 Under the unique facts presented, a judge who sold his/her former law office telephone number to an attorney for a lump sum must disclose the business transaction when the purchasing attorney appears before the judge, for a one-year period following receipt of payment.
06-62 A judge who sells his/her practice to another local lawyer must disclose the business relationship and recuse, subject to remittal, when the purchasing attorney appears before the judge. This disclosure and recusal requirement continues for two years following the receipt of final payment for the practice.
05-130(B) A full-time judge may accept rent from the lawyer who assumed the judge’s law practice and office housed in a building owned by the judge. However, the judge must disclose the relationship and exercise recusal (subject to remittal) for two years after receiving the final payment from the sale or assumption of the practice. As long as the aforesaid lawyer maintains a landlord/tenant relationship with the judge, the same rule of disclosure, recusal, and remittal applies.
III. When Must You Stop Practicing Law?
For planning purposes, a new full-time judge may need to determine when Part 100 starts to apply. Ordinarily, a judge who is elected at the general election in November should close down their practice on or before December 31st - please reach out to the Committee for guidance if you believe your specific circumstances warrant a different result.
98-92 An attorney whose nomination to the position of judge of the Court of Claims has been confirmed by the New York State Senate may continue to practice law until the oath of office is taken and filed pursuant to Public Officers Law §§10 and 30.
05-130(A) A full-time judge must withdraw from client representation and cease accepting new clients before assuming office January 1 after the judge’s November election. The professional corporation constituting the judge’s solo law practice may remain in existence with the judge as shareholder, but solely for the purpose of winding up its affairs, including collecting fees, including contingency fees, sending periodic bills to former clients, maintaining an escrow account to process fees, and submitting final corporate income tax returns reflecting income earned before assuming office. The judge must dissolve the corporation as soon as practicable after assuming office and may not transact corporate business after December 31, except activities necessary for its dissolution. During that time, and notwithstanding consent, the judge may not preside over any matter in which the judge’s former associates appear.
cf. 15-01 A non-judge who is seeking election or appointment to judicial office may remain employed as a police officer until he/she takes and files his/her oath of office as a judge.
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