Opinion 05-125

December 8, 2005

Digest:         A judge is not required to appoint a law guardian whom the judge deems to be incompetent and deficient in character and diligence, merely because the person has been placed on the official court list.

Rules:          22 NYCRR Part 36; 36.0; 100.3(C)(3).

Opinion:

         The inquiring judge asks whether he/she is required to appoint a law guardian whose name was added to the official court list by another judge of the same court. (Apparently a lawyer’s name may be placed on the law guardian list with the approval of any judge of the court.) The judge has indicated that the law guardian in question is, in his/her judgment unqualified for such an appointment by virtue of deficiencies in character, competence and diligence.

         We note that initially there is the question of whether there is an administrative requirement to appoint someone solely on the basis of the fact that the attorney has been placed on the list. We are unaware of any such procedural or administrative requirement. Part 36 of the Rules of the Chief Judge (“Appointments by the Court”) contains no such edict. 22 NYCRR Part 36.

         Moreover, section 100.3(C)(3) of the Rules Governing Judicial Conduct require all appointments by a judge to be made “impartially and on the basis of merit” as does section 36.0 of the Rules of the Chief Judge which likewise provides that appointments of the kind involved herein, are to be made “on the basis of merit.”

         Accordingly, it is clear that, given the ethical obligations of the judge, there would be no impropriety in declining to appoint the attorney in question on the grounds stated, notwithstanding the fact that he/she has been approved by another judge for placement on the law guardian list.