Opinion 18-160

October 18, 2018

Digest:         A full-time judge may bring an Article 81 guardianship proceeding and, if successful, serve as court-appointed guardian for his/her first-degree relative.

Rules:          22 NYCRR 36.2(b)(2)(i)(a); 36.2(c)(1); 100.2; 100.2(A); 100.2(C); 100.4(E)(1); 100.4(G); Opinions 12-96; 10-203(B); 03-125.

Opinion:

         A full-time judge asks if he/she may seek a court appointment to serve as an uncompensated guardian for his/her ailing parent under Mental Hygiene Law art 81, to address issues regarding the parent’s care and access to friends and family. Among other responsibilities, the judge expects to apply for Medicaid on behalf of his/her parent and manage payments to home health care aides and other necessary services. The judge has retained counsel to prepare and file an Article 81 petition, if permitted.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]). A full-time judge must not practice law, but may nonetheless “act pro se” and give uncompensated legal advice to family members (22 NYCRR 100.4[G]).

         In general, the Rules Governing Judicial Conduct “do not preclude a judge from exercising the same rights as any other citizen when appearing as a litigant” (Opinion 12-96). As the judge’s proposed litigation would, if successful, result in a court appointment, we first consider Part 36. When a court appointment is subject to Part 36, the appointee cannot be “a judge or housing judge of the Unified Court System of the State of New York” (22 NYCRR 36.2[c][1]). However, Part 36 does not apply to court appointments of “a guardian who is a relative of: (a) the subject of the guardianship proceeding” (22 NYCRR 36.1[b][2][i][a]). We thus conclude Part 36 is no bar to the judge’s appointment as his/her parent’s guardian.

         Nor do the Rules otherwise prohibit a judge from serving as guardian for a first-degree relative. Indeed, while a full-time judge ordinarily must not serve as guardian or other fiduciary “designated by an instrument,” he/she may nonetheless do so for “a member of the judge’s family” (22 NYCRR 100.4[E][1]; see also Opinion 10-203[B]).¹

         Accordingly, we believe this full-time judge may bring an Article 81 guardianship proceeding and, if successful, may serve as court-appointed guardian for his/her first-degree relative. We see no ethical reason why the judge could not, in that capacity, apply for Medicaid on behalf of his/her parent and manage payments to home health care aides and other necessary services (cf. Opinion 03-125 [full-time judge may serve as his/her parent’s authorized representative and appear with him/her in that capacity, and not as his/her attorney, at a hearing on his/her appeal of a Medicare determination]). We note the judge’s proposed activities as guardian do not involve the practice of law, which is prohibited for a full-time judge (see 22 NYCRR 100.4[G]).

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¹ Section 100.4(E)(1) does not govern here because the inquiring judge has apparently not been “designated [as guardian] by an instrument”; rather, he/she is seeking a court appointment as guardian under Article 81.