Opinion 05-39

October 27, 2005

Digest:         A judge whose spouse’s law firm does legal work for a municipality and has a continuing professional relationship with the municipality and its attorney should refrain from appointing the municipality’s attorney as a law guardian in custody matters.

Rules:          22 NYCRR 100.2.

Opinion:

         The inquiring Supreme Court justice is assigned to the matrimonial part of the court and over the past three and one-half years has made more than 100 law guardian appointments in custody matters. On one occasion the judge appointed as a law guardian an attorney who is also “employed as legal counsel by a local municipality.” The judge’s spouse is an attorney and the spouse’s law firm performs transactional legal work for that municipality, pursuant to retention by the board of the municipality. The attorney for the municipality and the judge’s spouse’s law firm “confer on matters concerning the municipality.” The appointment that was made was done so “upon full disclosure . . . and the consent of the parties through their counsel.” The judge asks whether the attorney may be appointed as law guardian in future matters.

         We note that the appointment that was made was done so upon disclosure and consent. Nevertheless, we are of the opinion that the preferable course for the judge in the future is not to appoint this particular attorney. There is a continuing professional relationship between the spouse’s law firm and the attorney; and, although the appointment of the law firm to handle transactional legal work for the municipality is not made by the attorney but by the municipality’s board, we can only presume that the views of its counsel, in the exercise of his/her professional responsibility is of significance, and the same would apply to passing upon the law firm’s legal fees. Under such circumstances continued appointments of the attorney could give rise to an appearance of impropriety and we thus advise the judge to refrain from doing so. 22 NYCRR 100.2.

         The judge also informs the Committee that another attorney, whom the judge had appointed as a law guardian on at least five occasions “recently went on a trip to Paris, which my Law Secretary attended.” In a subsequent communication, the judge informed the Committee that there is no personal relationship between the attorney and the law secretary; they were merely participants on the same trip. Based on such facts, the Committee sees no reason why the attorney could not be appointed a law guardian in future proceedings.