September 7, 2006
Digest: 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.
Rules: 22 NYCRR 36.1(a)(2), 36.2(c)(1), 100.4(G); Opinions 03-70; 02-13 (Vol. XIX); 99-76 (Vol. XVIII); 96-89 (Vol. XIV); 95-20 (Vol. XIII); 89-38 (Vol. VIII).
The inquirer is a full-time judge who, while in private law practice before becoming a judge, was appointed guardian ad litem in a complex, contested estate matter. After protracted negotiations, there was agreement on the terms of a settlement. The judge and the lawyers for the other parties took part in drafting the stipulation of settlement, but they did not execute it before the judge assumed office. This was due to last-minute changes a new attorney for one of the parties made, leading to another draft by the inquiring judge. After the judge took office, his/her former law firm received a revised draft from the new attorney (the fifth version of the proposed stipulation, according to the judge’s account).
The judge has not yet read the revised draft, but believes it conforms to the last changes he/she had drafted, and that the only step remaining is to examine the documents to see whether this is true, to execute and file the stipulation, and to file a report as guardian ad litem. The judge states, however, that not having read the latest draft, he/she cannot be certain that no additional negotiation or redrafting will be required. The surrogate who appointed the judge believes the judge may continue as guardian ad litem and complete any remaining tasks. The judge asks whether it is permissible to do so, pointing out that “this has been a lengthy, complex litigation and I am the only person at my former firm or elsewhere with intimate knowledge of this file, other than counsel for the other parties.”
A judge may not be appointed a guardian ad litem. 22 NYCRR 36.1(a)(2), 36.2(c)(1). Nevertheless, if the guardianship ad litem involved here did not entail the practice of law, its continuation after the judge took office would not present an ethical problem, because the appointment pre-dated the judge’s assumption of judicial office. See Opinion 03-70 [A judge who is permitted to practice law may continue to represent clients as an assigned law guardian, provided that the assignment began before the judge’s appointment to the bench.]
The inquirer, however, is a full-time judge, and not permitted to practice law. 22 NYCRR 100.4(G). In Opinion 89-38 (Vol. III), the Committee said that a judge who is barred from practicing law 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. See also Opinion 99-76 (Vol. XVIII) [“[T]he completion of unfinished legal work” by the executor of an estate who became a full-time judge “would be forbidden.”]
The work of the guardian ad litem herein is legal work. It involves analysis of an intricate legal document, designed to be filed in court to resolve litigation, and which has already undergone several drafts prepared by lawyers. As described in the inquiry, the guardian’s tasks are not ministerial: “This has been a lengthy, complex litigation and I am the only person at my former firm or elsewhere with intimate knowledge of this file, other than counsel for the other parties.” Moreover, additional negotiation or redrafting may be required. Cf. Opinions 02-13 (Vol. XIX) [A full-time judge who acted as an appointed referee in a foreclosure action before taking the bench may complete ministerial actions arising from the appointment, since a referee need not be admitted to the bar and under the circumstances presented is not practicing law.]; 96-89 (Vol. XIV).
Since the remaining duties as guardian ad litem are substantially legal in character, the judge must resign that position, but he/she may review the file with his/her successor so the new guardian can effectively complete those tasks. Opinion 95-20 (Vol. XIII).1
1 Subsequent to the submission of the inquiry, the judge did read the draft proposed settlement and now states that although the earlier issues have been resolved there is one new substantive issue that has been raised, which would require a further revision of the draft. In our view, the negotiation and drafting of such revision would likewise constitute the practice of law and is therefore prohibited.