December 8, 2016
Digest: A new full-time judge may continue to serve as a receiver in foreclosure pursuant to an appointment received before assuming the bench, provided his/her duties are ministerial in nature and completed within one year, if possible.
Rules: 22 NYCRR 36.1(a)(8); 36.1(b)(3); 36.2(c)(1); 100.2; 100.2(A): 100.4(G); Opinions 14-76; 13-164; 10-183; 10-169; 09-103; 03-37; 02-37.
A new full-time judge was previously serving as a court-appointed receiver in a foreclosure matter, where he/she was responsible for collecting rents on the subject property. The judge now asks if continuing to serve in that capacity after assuming the bench is ethically appropriate. The judge believes it “highly likely that the foreclosure will end within a year.”
A judge must always avoid even the appearance of impropriety (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]). Judges are ineligible for appointment as compensated receivers (see 22 NYCRR 36.1[a]; 36.1[b]; 36.2[c]), and a full-time judge may not practice law (see 22 NYCRR 100.4[G]).
Subject to certain limitations, a judge may nonetheless continue to serve in a fiduciary capacity pursuant to a court appointment made before he/she assumed judicial office, “even though the judge is no longer eligible for appointment to such positions” (Opinion 13-164; see also Opinions 10-183; 10-169; 09-103; 02-37). Of particular relevance here, a judge may “perform various functions and ministerial acts” pursuant to such previously received appointments, but should complete his/her service within one year, if possible (Opinion 13-164; see also Opinions 14-76; 13-164; 03-37; 02-37).
Accordingly, this full-time judge may complete his/her responsibilities as receiver in foreclosure pursuant to an appointment made before assuming the bench, provided such responsibilities are ministerial in nature and do not involve practicing law. However, the Committee cautions the judge to complete his/her service promptly and, to the extent possible, within one year (see Opinions 13-164; 10-169; 02-37).