Opinion 16-42

March 16, 2016

Digest:         Whether a judge may sign a final decree of judicial settlement pursuant to SCPA § 2602(1)(b), following disqualification of the judge who issued the underlying decision, is a legal question the Advisory Committee cannot address.

Rules:          Judiciary Law § 212(2)(l); SCPA § 2602(1)(b); 22 NYCRR 100.2; 100.2(A); 100.3(C)(3); 101.1; Opinions 15-226; 14-195.

Opinion:

         The inquiring judge is presiding over a case in which another judge, who is now disqualified from presiding, had issued a decision determining and fixing a guardian ad litem fee for an attorney more than a year before the disqualifying event (i.e. the other judge’s hiring of the guardian ad litem as a law clerk). A notice of settlement, and proposed final decree of judicial settlement, which sets forth the approved guardian ad litem fee, is currently before the presiding judge. The judge asks whether he/she may sign the final decree of judicial settlement, thereby authorizing the fee for the former guardian ad litem, pursuant to SCPA § 2602(1)(b).

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2). A judge must respect and comply with the law (see 22 NYCRR 100.2[A]) and must exercise the power of appointment impartially and on the basis of merit (see NYCRR 100.3[C][3]) and must not approve appointees’ compensation beyond the fair value of services rendered (see id.).

         The Committee has previously advised that it is ethically permissible for a judge to award legally appropriate fees to a guardian ad litem for the fair value of services rendered before the guardian became a court employee (see Opinion 15-226 [noting also that the court employee was not the personal appointee of the inquiring judge]). The new factor here is that another judge issued a decision determining and fixing the guardian ad litem fee for an attorney, but eventually hired that attorney as his/her personal appointee before signing the final decree of judicial settlement. SCPA § 2602(1)(b) provides:

In any county having more than 1 judge of the surrogate’s court ... (b) the disability of a judge or his illness or absence from the county after his decision upon any matter in an action or proceeding before him shall not affect the validity of such decision and the other judge may give effect thereto and make and sign an appropriate order or decree based thereon having the same force and effect as if made by the judge making the decision.

         Here, the inquiring judge asks whether SCPA § 2602(1)(b) authorizes him/her to sign the final decree of judicial settlement, thereby validating the prior judge’s decision to award the former guardian ad litem, who is now that prior judge’s personal appointee, for services rendered before the former guardian ad litem became a personal appointee of that judge. In essence, this inquiry asks whether disqualification constitutes a “disability” under the SCPA. Because this question cannot be answered without interpretation of the statutory language, we must decline to respond, as legal questions are beyond the Committee’s jurisdiction (see Judiciary Law § 212[2][l]; 22 NYCRR 101.1; see also Opinion 14-195). However, the Committee can see no ethical impropriety in signing the final decree of judicial settlement under these circumstances, assuming it is lawful to do so.