Opinion 11-43


April 28, 2011


 

Digest:         A Surrogate whose spouse is a partner in a law firm that frequently appears in the Surrogate’s Court (1) must disqualify him/herself from presiding when a partner or associate of the spouse’s law firm appears except in very limited circumstances and (2) may not appoint his/her spouse’s partners or associates to serve as fiduciaries except in very limited circumstances.

 

Rules:          Surrogate’s Court Procedure Act §1004; §1408; 22 NYCRR 36.0; 36.1(b) [repealed]; 36.2[b][1],[2]); 36.2(c); 100.2; 100.2(A); 100.3(C)(3); 100.3(E)(1); 100.3(E)(1)(c); 100.3(E)(1)(d)(iii); 100.3(F); 101.1; Opinions 08-30; 07-128; 06-111; 03-10; 98-14 (Vol. XVI); 95-35 (Vol. XIII); 94-110 (Vol. XII); 91-125 (Vol. VIII); 88-21 (Vol. II); 87-08 (Vol. I); 87-07 (Vol. I); 87-03 (Vol. I).


Opinion:


         A recently elected Surrogate whose spouse is a partner in a law firm (spouse’s law firm) that frequently appears in the Surrogate’s Court asks the following questions about disqualification when an attorney from the spouse’s law firm appears before him/her in an estate matter:

 

         1.       Where the spouse’s law firm represents a petitioner in an estate proceeding and all interested persons have waived and consented to the petitioner’s requested relief (i.e., appointment of the executor or administrator), may the judge preside and execute the Decree granting probate or administration?

 

         2.       Where the spouse’s law firm represents the petitioner in an estate proceeding and only some interested persons have waived and consented to the petitioner’s requested relief, may the judge execute the Citation to be served on those interested persons who have not waived and consented to the petitioner’s requested relief and, thereafter, if all cited parties default on the date the Citation is returnable, may the judge execute the Decree granting probate or administration?

 

         3.       Where the spouse’s law firm represents the petitioner or another interested person in an estate proceeding, may the judge execute the Citation to be served on all interested persons who have not waived and consented and, when one or more of such persons appears at the return date with counsel, disclose the reason for his/her disqualification and accept remittal from the parties and attorneys who appear?

 

         4.       In scenarios 2 and 3 above, may the judge issue preliminary and temporary letters which are authorized by statute in advance of the return date?


         A judge must avoid impropriety and its appearance in all the judge’s activities (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality(see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself from any proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]), including when the judge knows that the judge’s spouse has an interest that could be substantially affected by the proceeding (see 22 NYCRR 100.3[E][1][c] and [d][iii]). A judge who disqualifies him/herself pursuant to this Rule may nonetheless preside if his/her disqualification is remitted. Remittal is available only if the judge believes he/she can be impartial and is willing to participate, the judge fully discloses on the record the reason for his/her disqualification, and the parties who have appeared and not defaulted, and their lawyers, without the judge’s participation, agree in writing or on the record that the judge should not be disqualified (see 22 NYCRR 100.3[F]).


         The Committee previously has advised that a judge should disqualify him/herself when attorneys of a law firm, in which the judge’s spouse has a continuing counsel status, appear before the judge (see Opinion 95-35 [Vol. XIII]), subject to remittal. Similarly, a judge must disqualify him/herself, subject to remittal, when attorneys from the judge’s sibling’s law firm appear before the judge (see Opinion 06-111). In the Committee’s view, the relationship between second degree relatives is presumably an intimate and significant family connection (see id.). Consequently, a judge should exercise recusal when other attorneys from a second degree relative’s law firm appear, subject to remittal (see id. [judge’s sibling]; Opinion 91-125 [Vol. VIII] [judge’s daughter-in-law]; 03-10 [judge’s sibling]; 87-03 [Vol. I] [judge’s sibling]).


         Accordingly, the inquiring judge is disqualified, subject to remittal, when an attorney from the spouse’s law firm appears in the judge’s court. However, as the inquirer notes, estate proceedings in Surrogate’s Court routinely begin as uncontested matters. In such cases, remittal of disqualification is problematic because the only attorney appearing triggers the need for the judge’s disqualification ab initio (see e.g. Opinion 87-08 [Vol. I]). The Committee has advised that a judge who must disqualify him/herself because of a relationship with an attorney appearing in the judge’s court must do so even in uncontested matters (see Opinions 07-128; 98-14 [Vol. XVI]; but see Opinion 94-110 [Vol. XII] [co-judge may preside in judicial colleague’s uncontested adoption proceeding]).


         The fact that the necessary parties to a probate or estate administration proceeding have waived and consented to the relief requested does not warrant a different result. In the Committee’s view, the Surrogate’s role requires the judge to exercise discretion in making judicial determinations that are more than purely ministerial in nature. Pursuant to §1408 of the Surrogate’s Court Procedure Act (SCPA), “before admitting a will to probate, the court must inquire particularly into all the facts and must be satisfied with the genuineness of the will and the validity of its execution.” Similarly, pursuant to §1004 of the SCPA, “upon the return of process in a proceeding for letters of administration upon the estate of a person alleged to be deceased the court must inquire into the facts and take proof thereof and if it appears that he is dead the court may make a decree so determining and directing the issuance of letters of administration upon his estate as prayed for in the petition or to such other person who may appear entitled thereto.” While the resolution of these initial issues in a proceeding may often be, or appear to be, routine or mundane, they are fundamental and highly significant.


         Therefore, in response to the inquiring judge’s first and second questions, where the spouse’s law firm represents the petitioner and either all interested persons have waived and consented to the petitioner’s requested relief or one or more interested persons has waived and consented but others have not, the judge may not preside and execute the decree granting probate or administration or the citation. As the only interested person appearing at the outset is represented by the spouse’s law firm and the spouse’s law firm triggers the judge’s disqualification, remittal of disqualification is not possible.

  

         Of course, a standby Surrogate who is not disqualified under Rule 100.3(E) may issue the citation in a matter where the spouse’s law firm represents the petitioner. Thereafter, if no interested party has waived and consented to the requested relief, and instead all interested parties have either defaulted or appeared with counsel on the return date, the judge’s disqualification may be remitted under Rule 100.3(F).1 For such remittal to be effective, at least one interested person must appear and be represented by counsel, in addition to the petitioner who is represented by the spouse’s firm. Remittal is not available if (i) any interested person appears on the return date without counsel, (ii) any interested person who has appeared and not defaulted declines to agree to remittal, or (iii) the petitioner is the only party that appears before the judge.


         The judge also asks whether he/she may issue the citation when the petitioner in a probate or estate administration proceeding is represented by a law firm other than the spouse’s law firm, and one of the interested persons to be served with the petition is represented by the spouse’s law firm. In the Committee’s view, at the stage when the petitioner is seeking execution of the citation, there is no other party appearing before the judge and, therefore, the judge may execute the citations as requested by a petitioner who is not represented by the spouse’s law firm. If an interested party who retains the spouse’s firm as counsel appears on the return date, the judge may preside only if there is remittal of disqualification under Rule 100.3(F). Remittal is not available if (i) the petitioner or any interested person appears on the return date without counsel or (ii) the petitioner or any interested person who has appeared and not defaulted declines to agree to remittal.2


         Finally, for the same reason that the inquiring judge cannot issue a citation when the spouse’s law firm represents the petitioner, the judge also may not issue temporary or preliminary letters.


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         The inquiring judge also asks the following questions about fiduciary appointments when the spouse’s law firm is involved in an estate or guardianship proceeding:

 

1.       In a guardianship proceeding, where the spouse’s law firm represents the petitioner, may the judge appoint a fiduciary and, on the return date, disclose the reason for his/her disqualification and accept remittal from the petitioner, the petitioner’s attorney (i.e., an attorney from the spouse’s firm) and the fiduciary? In a guardianship proceeding, may the judge ratify or set the fee to be paid to the spouse’s law firm (as counsel for petitioner), on notice to the guardian, and award the fee from the ward’s resources? Would the answer be different if the spouse’s law firm has a policy that permits an attorney appointed to serve as a fiduciary to retain the entire fee and not share it with the rest of the firm?

 

2.       In an estate or guardianship proceeding, where the spouse’s law firm does not represent the petitioner, may the judge appoint an attorney from the spouse’s law firm to serve as a fiduciary and on the return date disclose his/her relationship with the spouse’s law firm and accept remittal from the petitioner, the petitioner’s attorney and the fiduciary? In a guardianship proceeding, may the judge ratify or set the fee to be paid to the spouse’s law firm (as guardian)? Would the answer be different if the spouse’s law firm has a policy that permits an attorney appointed to serve as a fiduciary to retain the entire fee and not share it with the rest of the firm?


         A judge must avoid impropriety and its appearance in all the judge’s activities (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity, impartiality, and independence (see 22 NYCRR 100.2[A]). Therefore, a judge must exercise the power of appointment impartially and on the basis of merit, and must avoid nepotism and favoritism (see 22 NYCRR 100.3[C][3]). In addition, pursuant to Part 36 of the Rules of the Chief Judge (Part 36), fiduciary appointees are to be selected on the basis of merit, without favoritism, nepotism, politics or other factors unrelated to the appointee’s qualifications or to the case’s requirements (see 22 NYCRR 36.0). Thus, judges must appoint from the appropriate list of applicants absent a good cause finding (see 22 NYCRR 36.2[b][1], [2]).


         Whether the inquiring judge may appoint a fiduciary to represent an interested person or party in Surrogate proceedings, when the spouse’s law firm represents the petitioner, will depend on the circumstances in each case. Because a judge must avoid even an appearance of impropriety (see 22 NYCRR 100.2), if the only interested persons or parties in a proceeding are the petitioner and one or more individuals who, due to a legal disability, must be represented by a guardian ad litem or other fiduciary, the inquiring judge may not make the appointment. In the Committee’s view, it would likely appear improper when a judge appoints a fiduciary and the fiduciary must decide whether to consent to the judge’s continued participation in the proceeding when the only other person who has currently appeared and not defaulted is represented by a partner or associate in the judge’s spouse’s law firm. While an attorney facing this circumstance might be genuinely concerned about the judge’s ability to be impartial, he/she may likewise feel compelled or reluctant to remit the judge’s disqualification to protect his/her own interest in receiving future appointments from the judge. In the Committee’s view, an attorney should not be placed in the position of having to face such a dilemma.


         However, in such a proceeding, where at least one other interested person or party is involved and represented by counsel who is independent of the spouse’s law firm and who was not appointed by the judge, the appearance of impropriety might not arise. The independent counsel’s decision about remittal would not be similarly suspect and the fiduciary’s concerns about future appointments might also be satisfied. Therefore, in this limited circumstance, it is the Committee’s view that the judge may examine the situation and exercise his/her discretion and thus conclude it would not be improper to appoint a guardian ad litem or other fiduciary for an individual who is subject to a legal disability; and the judge may thereafter follow the procedures set forth in 22 NYCRR 100.3(F) to afford all interested persons or parties the opportunity to remit the judge’s disqualification.


         The judge also asks whether he/she may appoint partners or associates from the spouse’s law firm as fiduciaries when the firm is not otherwise involved in the proceeding. The Committee previously has advised that a Surrogate should not continue to appoint the partners and associates of a law firm to serve as fiduciaries when the law firm recently hired the Surrogate’s child (see Opinion 87-07 [Vol. 1]). The Committee advised that doing so “lends itself to creating an appearance of impropriety which violates section 100.2 of the rules Governing Judicial Conduct” (id.). And that appearance of impropriety outweighed the specific language in section 36.1(b) of Part 36 of the Rules of the Chief Judge providing that the prohibition against judges appointing their relatives as fiduciaries does not apply to the professional associates of those relatives (see id.).3


         For similar reasons, the inquiring judge also may not appoint partners or associates from the spouse’s law firm to serve as fiduciaries (see 22 NYCRR 100.2). And, the fact that the partners or associates would be permitted, as a matter of firm policy, to keep any fees earned and not share them with the firm does not warrant a different result. Even if the judge’s spouse does not share the fees generated by the judge’s judicial appointments, the firm as a whole nevertheless benefits. For example, such appointments may generate additional legal work for the firm which would in some manner benefit the judge’s spouse financially. And, the judge is presumed to share, directly or indirectly, in his/her spouse’s financial benefit. Moreover, the benefits the spouse may realize from such appointments are not only financial. Over time, if the firm’s partners and associates believe they are obtaining fiduciary appointments because of the judge’s spouse’s affiliation with the firm, even in part, it is likely that the judge’s spouse’s standing in the firm will likely improve, albeit in less tangible or obvious ways.


         This conclusion is not inconsistent with the Committee’s prior Opinion 88-21 (Vol. II), where the Committee advised that it is permissible for a Surrogate to appoint the partners and associates of his/her first cousin to fiduciary positions as long as the Surrogate makes clear that his/her first cousin cannot share in the fees earned by his/her first cousin’s partners and associates and the Surrogate guards against any appearance of impropriety in connection with his/her first cousin’s partners and associates. The relationship between a judge and his/her spouse denotes not only the sharing of finances and other resources, but also a more intimate and significant family connection than the fourth-degree relationship between a judge and the judge’s first cousin (see Opinion 06-111). It is the totality of a marriage relationship that may result in an appearance of impropriety should the judge appoint his/her spouse’s partners and associates as fiduciaries (see 22 NYCRR 100.2).  


         The judge also asks questions about the propriety of awarding fees and ordering them paid from a ward’s own resources. Because this question is legal in nature, the Committee must decline to respond as it is beyond the Committee’s jurisdiction to do so (see 22 NYCRR 101.1; Opinion 08-30).




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     1 In the Committee’s view, an interested person who has waived and consented to the relief requested in a probate or estate administration proceeding has technically “appeared and not defaulted” for the purposes of Rule 100.3(F), but has not, without more, remitted disqualification of the judge. Nor would an interested person’s consent to remittal be effective unless the interested person was, in fact, represented by counsel at the time of remittal of the judge’s disqualification.


     2 See fn 1.


     3 Section 36.1(b) of Part 36 has since been repealed. Disqualification from appointment is now governed by Section 36.2(c) of Part 36, which does not similarly exempt the professional associates of a judge’s relatives from such disqualification.