June 12, 2003
Digest: A part-time judge who practices law may continue to represent certain clients as an assigned law guardian, provided that the assignments took place prior to the judge’s appointment to the bench.
Rules: 22 NYCRR 36.2(c)(1);100.4(G); 100.6(B)(1).
An attorney who has been appointed on several occasions as a law guardian representing children in custody proceedings subsequently was appointed to serve as a part-time judge. The judge now asks whether the rules governing fiduciary appointments by courts, specifically, that section [ 22 NYCRR 36.2(c)(1)] which prohibits the appointment of any judge of the unified court system, prevents the judge from continuing or completing the representation of those assigned clients.
While the rules unquestionably prohibit the appointment of a judge to various fiduciary positions, including appointments as “law guardians who are not paid from public funds...[,]” those same rules do not prohibit or address continued representation as law guardian of existing clients by the newly appointed judge. Nor does there appear to be any other ethics rule prohibiting such continuing representation. Indeed, it might prove detrimental to the children who are being represented by the law guardian to mandate a change in representation in the midst of divorce/custody litigation. It is therefore the opinion of this Committee that a judge who is permitted to practice law, i.e., a part-time judge, may continue to represent clients, by assignment, pursuant to 22 NYCRR 36.2(c)(1) as long as the assignment took place prior to the judge’s appointment to the bench. 22 NYCRR 100.6(B)(1).