Opinion 02-95


September 12, 2002

 

Digest:                        The requirements and restrictions of 22 NYCRR Part 36 governing fiduciary appointments do not apply to a referee appointed to conduct a deposition of the parties in a civil action where the fee is being determined by the parties and the referee, but the requirements and restrictions of section 100.3 (C)(3) of the Rules Governing Judicial Conduct do apply to such an appointment.

 

Rules:                         22 NYCRR Part 36; 100.3 (C)(3).


Opinion:


            A full-time judge inquires if Part 36 of the Rules of the Chief Judge governing the appointment of guardians, guardians ad litem, court evaluators, attorneys for incapacitated persons, receivers, persons designated to perform services for a receiver and referees applies to a referee appointed to conduct a deposition of the parties in a civil action. 22 NYCRR Part 36. In the instant action, the parties have agreed that the defendants will pay the referee’s fee and the amount of the fee will be determined by the referee and the parties.


            It is opinion of the Committee that the requirements of Part 36 concerning fiduciary appointments do not apply to a referee appointed to conduct a deposition of the parties in a civil action whose fee is being determined by the parties and the referee.


            However, the restrictions and requirements of section 100.3(C)(3) of the Rules Governing Judicial Conduct do apply to this appointment. 22 NYCRR 100.3(C)(3). Therefore the judge must appoint only on merit, avoid favoritism and may not appoint any person or the spouse of a person who is related to the judge or the judge’s spouse within the sixth degree of relationship and must comply with all the other requirements and restrictions of section 100.3 (C)(3).