March 12, 1996
A part-time judge may not serve as a guardian or court evaluator in proceedings
under Article 81 of the Mental Hygiene Law, for compensation.
22 NYCRR 36.1(b)(1) and (e)(2)
Two part-time judges have inquired as to whether the provisions of Part 36 of the Chief Judge's Rules would preclude the judge from serving as a guardian or court evaluator in Article 81 proceedings under the Mental Hygiene Law which involve elderly alleged incapacitated persons and/or government benefit questions, particularly involving Medicaid.
Section 36.1(b)(1) of the Chief Judge's Rules governing appointments in
Article 81 proceedings provides that:
No person shall be appointed who is a relative of, or related by marriage to, a judge of the Unified Court System of the State of New York.
This implicitly appears to preclude the appointment of any judge of the Unified Court System to serve as a guardian, court evaluator etc. in Article 81 proceedings since no exception is made for part-time judges. However, subdivision (e)(2) of Section 36.1 provides that the provisions of the Part do not apply to an appointment without compensation.
It seems anomalous that a part-time judge cannot serve a guardian, court
evaluator etc. in such proceedings if compensated but can serve in similar
capacities for compensation in other contexts. While there would not appear
to be any ethical reason for precluding a part-time judge from being appointed
in the regular course in Article 81 proceedings, the Chief Judge's Rules,
as presently drafted, preclude such an appointment if compensated. Further,
it should be noted that the recently amended Rules of the Chief Administrator
Governing Judicial Conduct in no way alters the binding effect of section