Joint Opinions 05-51 and 05-58

June 9, 2005

Please note that Part 835 of the Rules of the Appellate Division, Third Department (Family Court Law Guardian Panels) has been amended. Among other changes, Rule 835.3(c) no longer contains the following sentence: "A law guardian who serves as a judge or justice of a city, town or village court, or law clerk to a judge or justice, shall not be assigned or accept assignment as a law guardian in the county where the court is located in any type of proceeding over which that court could exercise jurisdiction." 22 NYCRR 835.3(c).


Digest:         It is not unethical for a part-time justice to be appointed as a law guardian, but such appointments may be barred in the Third Department under section 835.3(c) of the Rules of the Appellate Division, Third Department.


Rules:          Family Ct. Act §249; Judiciary Law §35(7); 22 NYCRR §835.3(c); Opinions 93-98 (Vol. XI); 95-167 (Vol. XIV); 03-140.


         A part-time town justice (who is also a part-time assistant county attorney) and another part-time village justice both ask whether they are precluded from accepting appointments to act as law guardians in the Third Department pursuant to section 35(7) of the Judiciary Law or section 249 of the Family Court Act.

         Part 36 of the Rules of the Chief Judge, which governs fiduciary appointments by the courts and generally prohibits the appointment of judges to a number of court-appointed positions, does not apply to “appointments of law guardians pursuant to section 243 of the Family Court.” Opinions 93-98 (Vol. XI); 95-167 (Vol. XIV). In Opinion 03-140, the Committee determined that a judge may also be appointed a law guardian pursuant to Judiciary Law §35(7).

         However, section 835.3(c) of the Rules of the Third Department states, in part:


“. . . Law guardians serving in the following positions or employed by any of the following offices shall not be assigned to serve as a law guardian in those types of proceedings in which, by virtue of such position or employment, they have either similar or equivalent subject matter jurisdiction or responsibilities or, in the county in which they are employed, the office by which they are employed participates as a party: judge or justice of a city, town or village court, law clerk to a judge or justice, district attorney, county attorney, or municipal corporation counsel.” [22 NYCRR 835.3(c]

         The Third Department rule does not appear to be an absolute bar to the appointment of part-time justices as law guardians. The Committee is unable, however, to advise the inquiring justices of all circumstances that preclude assignment. Whether a law guardian is precluded from a particular assignment by reason of the Third Department rule, is thus for determination to be made by the assigning judge on a case by case basis.