Digest: (1) A part-time lawyer judge may accept appointments in Family Court as a law guardian, but may only accept such appointments in the Supreme Court if no compensation is to be paid. (2) A part-time lawyer judge may be retained by parties in proceedings in Family Court or Supreme Court to serve as a law guardian.
Rules: 22 NYCRR 36.1(b)(1); 36.1 (e)(1); Opinions 90-143 (Vol. VI); 93-98 (Vol. XI); 95-167 (Vol. XIV); 98-81 (Vol. XVII).
A part-time lawyer-judge asks whether it is ethically permissible to accept appointments as a law guardian in Family Court or Supreme Court, or to be retained as a law guardian by the parties in a matter in Family Court.
The appointment of relatives of judges as law guardians is governed by Section 36.1 of the Rules of the Chief Judge. This provision has generally been held to apply to part-time judges themselves. See Opinion 98-81 (Vol.XVII). Although section 36.1(b)(1) generally prohibits appointments of relatives of judges as guardians, subdivision (e)(1), specifically excludes law guardians appointed pursuant to section 243 of the Family Court Act from this prohibition. For that reason, this Committee has previously concluded that part-time judges may accept appointments as law guardians in Family Court. [Opinions 90-143 (Vol. VI); 93-98 (Vol. XI); 95-167 (Vol. XIV)]. Because appointments by the Supreme Court are not excluded from the scope of the prohibition, a part-time lawyer judge is precluded from accepting such appointments in the Supreme Court unless the judge will not be receiving any compensation. 22 NYCRR 36.1(e)(2).
Part-time judges are permitted to practice law, but not before another judge who is permitted to practice law and who presides in a court that is located in the same county as that of the part-time lawyer justice. 22 NYCRR 100.6(2). Since the Family Court and the Supreme Court are presided over by judges who may not practice law, the Committee sees no ethical prohibition preventing a part-time lawyer judge from being retained to serve as a law guardian by parties to proceedings in either Family Court or Supreme Court.