Opinion 05-82

September 8, 2005

Digest:          (1) A judge may appoint the sister-in-law of his/her law clerk as a fiduciary under Part 36 of the Rules of the Chief Judge in proceedings before the judge, provided the judge believes that he or she can be impartial, discloses the relationship to the parties, and insulates the law clerk from any involvement in such matters. (2) A judge’s law clerk may attend a Continuing Legal Education program sponsored by a private law firm, but the law clerk should not permit the registration fee to be waived. (3) A judge may not mediate a private dispute between individuals.

Rule:            22 NYCRR 36.2; 22 NYCRR 100.3(C)(3); NYCRR 100.3(E)(1);22 NYCRR 100.4(F); Opinions 99-93; 05-12.

Opinion:

         A Supreme Court justice inquires whether Part 36 of the Rules of the Chief Judge, governing the appointment of fiduciaries, prohibits the appointment of the judge’s clerk’s sister-in-law, an attorney on the list of eligible appointees, in actions or proceedings before the judge. Certain persons are disqualified from appointment under Part 36. A judge may not appoint any “person who is the spouse, sibling, parent or child of an employee who holds a position [with the Unified Court System] at salary grade JG24 or above, or its equivalent by a court within the judicial district where the employee is employed. . . “ 22 NYCRR 36.2(c)(3). However, there is no prohibition expressed in the rule regarding attorneys who are related to a court employee solely by marriage. This differs from the provision contained in subdivision 36.2(c)(1) which bars individuals from appointment if they are related to the judge by blood or marriage within six degrees. 22 NYCRR 36.2(c)(1). Therefore, the rule does not preclude the appointment of an attorney who is related to a law clerk by marriage. Notwithstanding, in our view the judge in making any such appointment should disclose the relationship to the parties, and insulate the law clerk from any involvement in the matter. See, generally Opinions 99-93 and 22 NYCRR 100.3(C)(3). Accordingly, subject to the restrictions and requirements of section 100.3(C)(3) of the Rules Governing Judicial Conduct, the judge may appoint the law clerk’s sister-in-law as a fiduciary under Part 36.

         The judge also inquires whether the law clerk may attend a Continuing Legal Education (“CLE”) program sponsored by a law firm where the firm may practice before the judge and has offered to waive the law clerk’s registration fee. Based upon the facts presented, we see no ethical barrier to the law clerk’s attendance. Presumably, the CLE program is open to all members of the bar. The judge’s law clerk may attend the program and may accept refreshments and meals as are appropriate to the occasion. Opinion 05-12. However, allowing the law firm to waive the registration fee would present an appearance of impropriety inasmuch as it would appear that the law clerk is receiving preferential treatment by reason of his/her position with the court. Therefore, the law clerk should not permit the law firm to waive the registration fee.

         The final inquiry asks whether the judge may serve as a mediator in a private dispute between individuals who have retained attorneys, but have not instituted any court proceedings related to the dispute. Section 100.4(F) of the rule specifically prohibits a full-time judge from serving as a mediator unless it is expressly authorized by law; and the present situation would not be so authorized. 22 NYCRR 100.4(F). Accordingly, the judge is prohibited from serving as a mediator in the matter presented.