Opinion: 01-09

January 25, 2001

Digest:  The question of whether a Family Court judge should "sign off" on an attorney's application to be placed on a law guardian list does not in itself raise a question of judicial ethics. But if the judge has information indicating a substantial likelihood of professional misconduct, the judge should take appropriate action.

Rule:  Jud. Law §243; 22 NYCRR 100.3(D)(2).


            A Family Court judge advises the Committee that part of the judge's responsibility is to "sign off" on new law guardian applications. One such applicant, whom the judge had been friendly with as a fellow employee in the District Attorney's office, has completed the requirements and is ready to begin as a law guardian pending authorization by the judge.

            The judge's concern is two-fold. First, the judge knows that the applicant "has been reported to the Ethics Committee" and believes that the matter, involving alleged insurance fraud is pending. Second, the applicant's spouse, a former police officer, pleaded guilty to "felony federal charges concerning (I believe) stealing drugs from a suspect." It is anticipated that the spouse and the applicant will be witnesses at an upcoming trial involving the spouse's former partner.

            Based on the foregoing, the judge seeks the Committee's opinion as to whether the judge "should authorize [name] to become a law guardian knowing [he/she] faces ethics problems and will probably be involved in a difficult and very public case as a witness."

            It is the view of the Committee that the circumstances referred to by the judge do not, in and of themselves, raise questions of judicial ethics. The mere fact that the attorney may be a witness in a "public case" does not appear to call for action by the judge. As to an investigation for possible "insurance fraud," it is unclear what the basis of the judge's knowledge is. We note that as a matter of judicial ethics, "[a] judge who receives information indicating a substantial likelihood that lawyer has committed a substantial violation of the Code of Professional Responsibility shall take appropriate action." 22 NYCRR 100.3(D)(2). If that is the situation, and the judge has information which, in the judge's view, casts substantial doubt on the applicant's fitness to practice law, then the judge's duty is clear. If, however, the judge has knowledge only of what has become public knowledge, i.e. of an ethics investigation, the judge should consider whether it should be brought to the attention of the Appellate Division, which under section 243 of the Judiciary Law, is the appropriate authority over law guardians. Moreover, if on the other hand, the judge does not possess such information, and the person is placed on the law guardian list, this does not mean that the judge is barred from considering the matters alluded to in determining whether the circumstances as such may interfere with the person's ability to represent a particular party in a proceeding in the judge's court. Should that be the case, the judge may opt not to make the appointment in that matter.