Digest: A judge assigned to a part which determines fees to be paid to fiduciaries should not set the fee to be paid to another judge of the same court for work the latter did prior to becoming a judge.
Rule: 22NYCRR 100.3 (E)(1); Opinion 01-121.
A judge currently assigned to a part which regularly determines fees to be paid to fiduciaries asks whether he/she may determine and order the fee paid to another judge of the same court for work the latter did as an attorney prior to taking the bench.
In the Committee’s view it is inadvisable for the judge to determine and order the fee to be paid to a judge of the same court. The relationship among judges of the same court is one of collegiality and cooperation and thus passing upon the fee application might create an appearance of impropriety in that the proceeding could readily be perceived as one “in which the judge’s impartially might be questioned.” 22NYCRR 100.3(E)(1). See also, Opinion 01-121. A better way to proceed is for the inquirer to ask his/her Administrative Judge to assign another judge from a different court, who does not know the judge seeking the fee, to pass upon the application.