December 3, 2015
Digest: It is ethically permissible for a judge to order legally appropriate payment to a former guardian ad litem for services which pre-date the hiring of that attorney by another judge as a principal law clerk.
Rules: 22 NYCRR 36.1(a)(2); 36.2(c)(3); 100.2; 100.2(A); 100.3(C)(3); 100.3(E)(1); Opinions 11-21; 11-07; 08-130; 05-130(A); 88-118.
The inquiring judge previously set the fee for a guardian ad litem by a decision and order several months ago. The decision and order directed petitioner to submit the decree. The petitioner did not do so immediately, and in the interim, another judge hired the former guardian ad litem as his/her principal law clerk. The petitioner has now submitted a proposed decree to the inquiring judge for signature, which contains an order for payment of the guardian ad litem fee. The inquiring judge asks whether he/she may order the payment of these fees “based on my fixing of [his/her] fee in my [prior] decision,” for the work the former guardian ad litem did before becoming a court employee?
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2). A judge must respect and comply with the law (see 22 NYCRR 100.2[A]), must exercise the power of appointment impartially and on the basis of merit (see 22 NYCRR 100.3[C]), and must not approve appointees’ compensation beyond the fair value of services rendered (see id.).
The Committee has consistently advised that a full-time judge, who is prohibited from practicing law or serving as a fiduciary, may nonetheless accept fees earned for legal or fiduciary work performed before assuming judicial office (see e.g. Opinions 11-21; 11-07; 08-130; 05-130[A]; 88-118).
By analogy, although a court employee is disqualified from appointment as a guardian ad litem under Part 36 (see 22 NYCRR 36.1[a]; 36.2[c]), the Committee believes it should be ethically permissible for a judge to award legally appropriate fees to a guardian ad litem for the fair value of services rendered before the guardian became a court employee (see 22 NYCRR 100.3[C]).
Therefore, as the inquiry reveals no circumstances to cause the judge’s impartiality to be reasonably questioned or otherwise create an appearance of impropriety (see 22 NYCRR 100.2; 100.3[E] [judge must disqualify him/herself in a case where the judge’s impartiality might reasonably be questioned]),1 and both the initial appointment of the guardian ad litem and all the services he/she performed as guardian pre-date his/her court employment, the Committee opines it ethically permissible for this judge to complete the process and order legally appropriate and reasonable payment to said guardian for the work previously done.
1 Significantly, the court employee in question is not the personal appointee of the inquiring judge, but is instead the principal law clerk to another judge.