Opinion 09-72

March 12, 2009

Chief Counsel's Comment (November 2023): On its face, Section 100.4(E)(1) applies to a full-time judge serving as "a guardian ... or other fiduciary, designated by an instrument" (emphasis added). Where a guardian is appointed by a court, rather than by an instrument, Part 36 would ordinarily govern the initial appointment. However, even if the inquirer had been a judge at the time of the initial appointment, Section 36.1(b)(2)(i) provides an exception for "a guardian who is a relative of: (a) the subject of the guardianship proceeding." See 22 NYCRR 36.1(b)(2)(i)(a).

Digest:         A full-time judge may serve as legal guardian for his/her parent.

Rules:          22 NYCRR 100.0(I); 100.2; 100.2(A); 100.4(E)(1); Joint Opinion 90-95/90-113/90-115 (Vol. VI).

Opinion:

         Before assuming the bench, a recently-elected, full-time judge was appointed his/her parent’s legal guardian, and now asks whether it is ethically appropriate to continue in that capacity.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) 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 full-time judge is permitted to serve in a fiduciary capacity for a member of the judge’s family (see 22 NYCRR 100.4[E][1]; 22 NYCRR 100.0[I]); Joint Opinion 90-95/90-113/90-115 [Vol. VI]). Therefore, the inquiring judge may continue to serve as legal guardian for his/her parent.