Opinion 08-130

December 4, 2008

Digest:         A town/village justice is not ethically prohibited from applying for and receiving permissible attorney’s fees and disbursements for services he/she performed as a fiduciary pursuant to a surrogate judge’s order, which continued his/her earlier fiduciary appointment, after Part 36 of the Rules of the Chief Judge was amended to prohibit the appointment of judges of the Unified Court System as fiduciaries.

Rules:          22 NYCRR Part 36; 100.2; 100.2(A); Opinions 02-37; 99-115 (Vol. XVIII).

Opinion:

         In 1997, before the inquiring lawyer town/village justice assumed the bench, a surrogate judge appointed him/her to a fiduciary position that was subject to the provisions of Part 36 of the Rules of the Chief Judge (see 22 NYCRR Part 36). The inquirer was not a town/village justice at the time. The inquirer performed fiduciary services in the same case at various times until 2007. In 2000, the inquirer was appointed a Village Justice, subsequently was elected to a full-term as Village Justice, and thereafter re-elected to subsequent terms, and currently holds that office.

         In 2003, due to the inquirer’s extensive knowledge of the case, a successor surrogate again sought the inquirer’s fiduciary services in the same case. The inquirer, however, notified the successor Surrogate in writing that he/she could no longer serve as a fiduciary because a recent amendment to the provisions of Part 36 prohibits appointment of a judge of the Unified Court System as a fiduciary. Nevertheless, the successor Surrogate advised the inquirer that he/she had determined that there was no problem if the inquirer continued to serve as a fiduciary in the case as he/she was originally appointed before the amendment to Part 36 took effect. The successor Surrogate then issued an order again appointing the inquirer as a fiduciary in the case. The inquirer thereafter filed a Notice of Appointment and Certificate of Compliance with the court, and clearly indicated that he/she was not in compliance with Part 36. The inquirer continued to perform fiduciary services related to the case until it was concluded.

         In 2007, after the case was concluded, the inquirer submitted an application to the Surrogate’s court for attorney’s fees and disbursements. The referee who reviewed the application contacted the inquirer and questioned whether he/she can receive compensation for fiduciary services provided after Part 36 was amended to prohibit the appointment of judges of the Unified Court System as fiduciaries.

         A presiding subsequent successor surrogate thereafter issued an order denying the inquirer’s application for attorney’s fees without prejudice, and with leave to renew the application upon obtaining an opinion from the Advisory Committee on Judicial Ethics as to the ethical propriety of the following circumstances:

Whether the Part 36 Rules in effect during the time the inquirer served as a fiduciary prohibit him/her from accepting, or continuing, the appointment as a fiduciary while he/she contemporaneously served as a part-time judge.

Whether the Part 36 Rules in effect at the time the inquirer was serving as a fiduciary prohibited him/her from receiving compensation while he/she was contemporaneously serving as a part-time judge.

Whether the inquirer is required to make restitution to his/her ward for compensation collected, if any, in the event that he/she was prohibited from receiving such compensation while serving as a fiduciary contemporaneously with serving as a part-time judge.

Whether the opinions of the Advisory Committee on Judicial Ethics in effect during the time the inquirer was serving as a fiduciary contemporaneously with serving as a part-time judge were/are binding on him/her.

Whether any of the recent opinions of the Advisory Committee on Judicial Ethics are to be applied retroactively or are to supercede any of its prior opinions which were in effect during the course of the inquirer’s contemporaneous service as a fiduciary and as a part-time judge.

Whether the inquirer was under an obligation or continuing obligation to be self-apprised of, and to comply with, the Part 36 Rules in effect during his/her contemporaneous service as a fiduciary and part-time judge.

Whether the inquirer was required to include in each of his/her affirmations of service completed from and after September 1, 2000 that he/she was currently serving as a part-time judge.

         In addition, the inquirer asks whether he/she may be compensated for all, part or none of the services rendered and disbursements made as a fiduciary in the subject case for the period commencing April 2, 2002 and ending November 28, 2007.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2), must respect and comply with the law, and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). The Committee has previously advised that although a newly elected judge cannot accept an appointment to serve for compensation as a fiduciary pursuant to Article 81 of the Mental Hygiene Law once he/she assumes the bench, it would not be improper for him/her to continue to serve in such capacity pursuant to a court appointment made before he/she assumed the bench. The Committee further advised that the judge should, if possible, complete such service within one year after assuming the bench (see Opinion 02-37). The Committee also notes that the Administrative Judge for the Judicial District in which the instant Surrogate’s Court is located issued a memorandum to all justices and acting justices of the Supreme Court, dated April 21, 2003, concerning the application of the Part 36 amendment prohibiting appointment of judges of the Unified Court System as fiduciaries. The Administrative Judge’s memorandum provides, in relevant part, as follows:

I remind you that the rule regarding disqualification from appointment was effective January 1, 2003. The new appointment provisions are effective June 1, 2003. Any appointments made prior to January 1, 2003 that violate the new disqualification rules will not be terminated and may continue until completion of the assignment.

         In the Committee’s view, given the facts presented, it was not improper for the inquiring town/village justice to continue serving as a fiduciary in the subject case after Part 36 was amended to prohibit the appointment of judges of the Unified Court System as fiduciaries. In fact, it would have been ethically impermissible for the inquirer to ignore the successor Surrogate’s order appointing the inquirer to continue as the fiduciary (cf. Opinion 99-115 [Vol. XVIII]). And, in light of the Surrogates Court orders directing the inquirer to continue to act as a fiduciary after Part 36 was amended and the administrative judge’s directive allowing the inquirer to continue in these very circumstances, it would be most unfair to the inquirer to prohibit him/her from collecting any fees so earned and disbursements thus made. We believe this conclusion is consistent with the opening sentences of the Preamble to The Rules Governing Judicial Conduct (22NYCRR, Part 100), which set forth guidelines for interpreting and applying the rules, as follows:

“The rules governing judicial conduct are rules of reason. They should be applied consistently with constitutional requirements, statutes, other court rules and decisional law and in the context of all relevant circumstances. The rules are to be construed so as not to impinge on the essential independence of judges in making judicial decisions.” [Emphasis added.]

         In light of the foregoing, it is the Committee’s view that the inquiring town/village justice is not ethically prohibited from applying for and receiving permissible attorney’s fees and disbursements for the fiduciary services he/she performed pursuant to the Surrogate orders and District Administrative Judge’s directive while simultaneously holding the office of town/village justice, both before and after Part 36 was amended to prohibit appointing judges of the Unified Court System to certain fiduciary positions.

         The Committee believes this response sufficiently addresses both the inquirer’s question and those the Surrogate directed the inquirer to pose to the Committee.