December 12, 2013
Digest: A newly elected full-time judge, who was involved in two final accountings as a court-appointed fiduciary before assuming the bench, may respond to requests from the appointing court for additional information or revisions and may contact the appointing court to determine the status of a previously requested order, but must complete his/her service or secure a substitute within one year after assuming the bench, if possible.
Rules: Mental Hygiene Law, Article 81; 22 NYCRR 36.2(c); 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(G); Opinions 10-47; 02-37; 95-39 (Vol. XIII).
A newly elected full-time judge who previously practiced law asks if he/she may continue to perform work as a court-appointed fiduciary in two matters that he/she cannot complete before assuming the bench in January 2014. In one matter, the judge was appointed a guardian pursuant to Article 81 of the Mental Hygiene Law. The judge submitted a final accounting, but anticipates that the appointing court will not review the accounting before January 2014, and is likely to request additional information and revisions. In the other matter, the judge states he/she was appointed as a fiduciary “for purposes of reviewing the final accounting.” The judge states that he/she has completed the final accounting and is awaiting judicial settlement and transfer of the guardianship to another court, but asks if he/she may continue to contact the appointing court to determine the status of a previously requested “order discharging the [current] guardians, appointing successor guardians and transferring the matter to” another court.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]), and Part 36 further specifically prohibits the appointment of any “judge or housing judge of the Unified Court System of the State of New York” to certain fiduciary positions (22 NYCRR 36.2[c]).1 In addition to these restrictions, a full-time judge may not practice law (see 22 NYCRR 100.4[G]).
The Committee previously has advised that it is permissible for judges who have recently assumed the bench to “perform various functions and ministerial acts as court-appointed fiduciaries,” even though the judge is no longer eligible for appointment to such positions, provided that such fiduciary services “are completed promptly and, to the extent possible, within their first year in office” (Opinion 10-47). For example, a recently elected full-time judge who was serving as a court-appointed guardian pursuant to Article 81 of the Mental Hygiene Law may “continue to serve in such fiduciary capacity” after assuming the bench, but should complete such service “within one year, if possible” (Opinion 02-37). Similarly, a recently elected full-time judge who had been appointed a conservator2 prior to assuming the bench may, as a matter of necessity, continue to serve as such conservator by performing ministerial acts, receiving income, reinvesting funds, paying bills and continuing the services of a certified social worker, until a successor or interim conservator is appointed, but must move promptly for appointment of a substitute (see Opinion 95-39 [Vol. XIII]).
In the Committee’s view, the specific activities the inquiring full-time judge proposes to undertake in order to complete his/her service as a court-appointed fiduciary do not constitute the practice of law within the meaning of the Rules Governing Judicial Conduct (see 22 NYCRR 100.4[G]). With respect to the inquiring judge’s intention to contact the appointing court to determine the status of a previously requested order, the Committee notes that because the judge will initiate such communications solely in his/her capacity as a court-appointed fiduciary who has an ethical obligation to complete his/her service within one year to the extent possible, there is no reasonable basis to conclude the judge is using the prestige of his/her judicial office to advance the private interests the judge or others (see 22 NYCRR 100.2[C]).
In sum, the Committee concludes that the inquiring judge may continue to serve as a fiduciary pursuant to his/her previously received appointments under the circumstances described, but should complete his/her service or secure a substitute within one year after assuming the bench (see Opinions 10-47; 02-37; 95-39 [Vol. XIII]).
1 For example, the Committee has observed that “[u]nder Part 36 of the Rules of the Chief Judge, a judge may not accept an appointment to serve as a fiduciary under Article 81 of the Mental Hygiene Law, for compensation” (Opinion 02-37).
2 The responsibilities of a conservator are now performed by a guardian pursuant to Article 81 of the Mental Hygiene Law (see Chapter 698, Laws of 1992, which repealed provisions of the Mental Hygiene Law that provided for appointment of conservators and enacted Article 81 to replace them).