Opinion: 03-140
January 29, 2004
Digest: (1) A part-time city court judge may continue to practice law subject to the limitations set forth in the Rules Governing Judicial Conduct. (2) A part-time city court judge and the judge’s mother may be appointed law guardians pursuant to §243 of the Family Court Act and §35(7) of the Judiciary Law; guardians ad litem pursuant to §403-a of the Surrogate’s Court Procedure Act; guardians ad litem when nominated by an infant 14 years of age or over; or, any of the appointments prohibited by Part 36 of the Rules of the Chief Judge if the judge or the judge’s mother will serve without compensation.
Rule: Family Ct. Act §243; Judiciary Law §35(7); Surrogate’s Court Procedure Act §403-a; 22 NYCRR 36.1(a)(2), (a)(3), (b)(1), (b)(2)(ii), (b)(3); 36.2(c)(1); 100.4(G); 100.6(B)(2), (3); Joint Opinion 95-166/97-78 (Vol. XVI).
Opinion:
A newly appointed part-time city court judge practices law with his/her mother. The judge handles family law, residential real estate, simple wills and estates, and miscellaneous other matters, with an emphasis on family law. The judge’s mother has a similar practice, but concentrates on wills and estates. The judge asks whether it is ethically permissible to continue the law practice, and whether he/she may continue to serve as a law guardian or guardian ad litem.
A part-time judge is not prohibited from practicing law [see 22 NYCRR 100.4(G)], but is subject to certain limitations when doing so. Section 100.6 (B)(2) of the Rules Governing Judicial Conduct provides as follows:
[A] part-time judge shall not practice law in the court on which the judge serves, or in any other court in the county in which his or her court is located, before a judge who is permitted to practice law, and shall not act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto;
In addition, with respect to the practice of law by a judge’s partners or associates, §100.6(B)(3) of the Rules Governing Judicial Conduct imposes the following limitations:
[A] part-time judge shall not permit his or her partners or associates to practice law in the court in which he or she is a judge, and shall not permit the practice of law in his or her court by the law partners or associates of another judge of the same court who is permitted to practice law, but may permit the practice of law in his or her court by the partners or associates of a judge of a court in another town, village or city who is permitted to practice law. The judge, therefore, is permitted to continue practicing law, but neither the judge nor the judge’s mother may practice law in the city court in which the judge presides. In addition, the judge may not appear before another judge in the county in which the judge’s court is located who also is permitted to practice law.
Part 36 of the Rules of the Chief Judge, which governs fiduciary appointments by the courts, generally prohibits the appointment of a judge of the Unified Court System, or a person related within the sixth degree to a judge of the Unified Court System, to a number of court appointed positions, including guardians ad litem and law guardians. 22 NYCRR 36.1(a)(2), (3); 36.2(c)(1). Part 36 does not, however, apply to appointments of law guardians pursuant to §243 of the Family Court Act, guardians ad litem pursuant to §403-a of the Surrogate’s Court Procedure Act, a guardian ad litem nominated by an infant of 14 years of age or over, or any of the appointments prohibited by Part 36 if the appointee serves without compensation. 22 NYCRR 36.1(b)(1), (2)(ii), (3).
In addition, in Joint Opinion 95-166/97-78 (Vol. XVI), the Committee concluded that relatives within the sixth degree of relationship to Unified Court System judges may be appointed law guardians pursuant to Judiciary Law §35(7), which provides for appointment of law guardians in Supreme Court actions or proceedings that could have been brought in Family Court, so long as the appointment is made from the Appellate Division law guardian list. At the time Joint Opinion 95-166/97-78 was issued, Part 36 addressed only appointments of relatives of judges of the Unified Court System, and not the appointment of judges. The rationale with respect to appointments of relatives of judges applies to judges as well, so that they too may be appointed law guardians pursuant to Judiciary Law §35(7).
It is the Committee’s opinion, therefore, that the inquiring judge and the judge’s mother may be appointed law guardians pursuant to §243 of the Family Court Act, law guardians pursuant to §35(7) of the Judiciary Law, guardians ad litem pursuant to §403-a of the Surrogate’s Court Procedure Act, guardians ad litem when nominated by an infant of 14 years of age or over, or any of the appointments prohibited by Part 36 if the judge or the judge’s mother will serve without compensation.