Inquiry 18-17

April 4, 2018

Please Note: The digest of Opinion 19-125 states: “A part-time attorney judge may continue to represent a client as guardian pursuant to a Part 36 assignment made before the judge assumed the bench.  Where the appointment is a continuing one, the representation need not be completed within one year.” The body of the opinion further explains: “the judge need not complete the representation within one year, where the appointment is a continuing one and the representation does not conflict or interfere with proper performance of the judge’s duties or involve appearances before a part-time attorney judge in the same county.  Opinions 18-17 and 09-103 are modified and overruled to the extent they suggest part-time judges must complete any and all Part 36 assignments within one year” (id.). 

Dear :

         This responds to your inquiry (18-17) asking whether, as a new part-time justice, you may 1) complete your Part 36 assignments that you received prior to taking the bench and 2) continue to accept assignments as a referee in foreclosure matters. If you may no longer accept referee assignments in foreclosure matters, you ask whether you may complete any assignments you were given before taking the bench.

         The Committee has previously advised that judges may, subject to certain limitations, continue to act in a fiduciary capacity pursuant to a court appointment made prior to assuming the bench. However, such work should be completed within one year. Similarly, you may complete your responsibilities as a referee in foreclosure matters pursuant to any court appointments made prior to taking the bench. However, a judge of the Unified Court System is not eligible for appointment as a referee in a foreclosure matter (see 22 NYCRR 36.1[a][9]; 36.2[c][1]; and explanatory note 1G [noting that referees appointed “for the purpose of…conducting the sale of real property in a mortgage foreclosure action” are governed by Part 36]).¹

         Enclosed, for your convenience, are Opinions 10-183 and 09-103 which address this issue.

                                                 Very truly yours,

                                                 George D. Marlow, Assoc. Justice

                                                 Appellate Div., First Dep’t

                                                 Committee Co-Chair

                                                 Hon. Margaret T. Walsh

                                                 Family Court Judge

                                                 Acting Justice, Supreme Court

                                                 Committee Co-Chair

Encls.

¹ Note available at http://www.nycourts.gov/ip/gfs/Part36ExplanatoryNotes.pdf.