Opinion 09-168

June 10, 2010

NOTE: See footnote 1, which was added after this Opinion was first published.

Digest:         A part-time lawyer judge who presides in a court located in the Third Judicial Department may be assigned or accept appointment as a law guardian unless such assignment involves a legal or ethical conflict of interest.¹

Rules:          Criminal Procedure Law 530.11(4); 530.12(3-a), (3-b); Judiciary Law §16; 22 NYCRR 100.2; 100.2(A); 100.4(A)(3);100.6(B)(1); 100.6(B)(2); 835.3(c); Joint Opinion 88-17(a)/88-25 (Vol. I).

Opinion:

         A part-time lawyer judge who presides in a court located in the Third Judicial Department asks whether he/she may be assigned to serve as a law guardian in the family court.

         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]). A part-time judge who is a lawyer is permitted to practice law (see 22 NYCRR 100.6[B][1]).

         At the time of the inquiry, the relevant language of Section 835.3(c) of the Rules of the Supreme Court, Appellate Division, Third Judicial Department, entitled, “Assignment of Law Guardians,” provided as follows:

No law guardian shall be assigned to represent a minor when such assignment may involve a legal or ethical conflict of interest. A law guardian who serves as a judge or justice of a city, town or village court or law clerk to a judge or justice, shall not be assigned or accept assignment as a law guardian in the county where that court is located in any type of proceeding over which that court could exercise jurisdiction.

         However, section 835.3(c) of such rules was amended effective March 11, 2010 and now reads as follows:

No law guardian, including a law guardian who serves as a judge or justice of a city, town or village court or law clerk to a judge or justice, shall be assigned or accept assignment in any court as a law guardian when such assignment may involve a legal or ethical conflict of interest.

         Therefore, in the Committee's view, a part-time lawyer judge who presides in a court located in the Third Judicial Department now is eligible for appointment to serve as a law guardian unless there is an actual legal or ethical conflict in a given case. For example, an actual legal or ethical conflict may result if serving as a law guardian will interfere with the judge/lawyer's ability to perform his/her judicial duties (see 22 NYCRR 100.4[A][3]); if the matter to which he/she would be assigned originated in his/her court (see Judiciary Law §16; Joint Opinion 88-17[a]/88-25 [Vol. I]); if the judge/lawyer served as a judge in the case (see 22 NYCRR 100.6[B][2])²; or, the appointment is prohibited by Part 36 of the Rules of the Chief Judge (Appointments by the Court).

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          ¹Such appointment is permitted pursuant to section 835.3(c) of the Rules of the Supreme Court, Appellate Division, Third Department as amended effective March 11, 2010, subject to any applicable provisions of Part 36 of the Rules of the Chief Judge.

          ²Pursuant to Criminal Procedure Law §§ 530.11[4], 530.12[3-a], and [3-b], a local criminal court judge may preside in a family offense proceeding that is pending in Supreme or Family Court or that is commenced in a local criminal court and thereafter transferred to Family Court.