Opinion 96-108

April 9, 1997


Dear Judge

         This is in response in your inquiry (96-108) in which you seek the opinion of the committee as to “whether a part-time Village or town Justice may accept an appointment as a guardian ad litem or other fiduciary by a Judge or Surrogate of a higher court.”

         The Committee has previously addressed the subject matter of your inquiry in Opinions 95-136, 93-98, and 93-85. As construed by the Committee (and by the Office of Court Administration), section 36.1 of the Rules of the Chief Judge (22 NYCRR 36.1), precludes a part-time judge from accepting a judicial appointment as a guardian ad litem or conservator, except under the circumstances specified in section 36.1(e).

         Moreover, the Administrative Board of the Courts recently considered the possibility of revising Part 36 with respect to fiduciary appointments of part-time judges and their relatives. After careful consideration the Administrative Board declined to alter the prohibition. It was noted that the principal purpose of the rule is to address the perception of favoritism in judicial appointments and that this perception potentially exists for any appointment where the appointee is a judge or relative of a judge of any court, including a court of limited jurisdiction. Accordingly, section 36.1 of the Rules of the Chief Judge remains binding on part-time judges.

                                                                     Very truly yours,

                                                                     George D. Marlow

                                                                     Dutchess County Court Judge


                                                                     Thomas P. Flaherty

                                                                     Justice of the Supreme Court