Opinion 03-128

January 29, 2004

Digest:         On the facts presented, no ethical impediment appears to bar the inquiring judge from continuing to serve as an uncompensated Mental Hygiene Law, Article 81 guardian which appointment had been made and modified prior to the assumption of judicial office, provided that such services do not interfere with the performance of judicial duties.

Rule:           Mental Hyg. Law Art. 81; 22 NYCRR Part 36.

Opinion: 

         A full-time judge elected in November 2003 inquires as to whether the judge may continue to serve as the court-appoint Mental Hygiene Law, Article 81 guardian of the person and property of a 96-year-old ward. The judge has been serving without compensation. The judge will continue to be uncompensated if permitted to proceed.

         When the judge became an employee of the Unified Court System as a principal law secretary, the judge sought and received a modification of the original order creating the guardianship so as to permit continuation as guardian without compensation. The modification for non-compensation was necessary to comply with what was then section 36.1(e)(2) of the Rules of the Chief Judge which permitted an employee of the Unified Court System to serve in an otherwise prohibited employment if the appointment is “without compensation.”

         The specific revisions of the governing section of Part 36, which became operative on January 1, 2003, bar judges from being appointed to various fiduciary positions, including that of guardian. However, section 36.1(b)(3) excludes from

such prohibition “an appointment other than above without compensation, except that the appointee must file a notice of appointment pursuant to section 36(a) of this Part.” (22 NYCRR 36.1[b][3]), and thus would seem to permit such appointment as is involved herein.

         Further, it is important to note that the appointment in this instance, and the later modification of it to permit its continuance provided it was without compensation, preceded the revision explicitly barring judges from receiving fiduciary appointments. Thus, considering the unquestioned propriety of the original appointment and its late modification, we see no ethical barrier to the judge continuing in that position. That is, even if, for some, reason it was concluded that a judge could not be appointed to such a position even without compensation, that would not preclude the inquirer from continuing in that position which came into being prior to the adoption of the present rule. This presumes, of course, that such service will not interfere with the inquirer’s performance of judicial duties.