Opinion 18-22

January 24, 2018

Digest:         A new full-time judge who previously served as guardian ad litem in a federal case may (1) voluntarily provide a factual statement or affidavit about his/her former service as guardian ad litem; (2) respond to the federal judge’s questions about whether a new guardian ad litem should be appointed; and (3) appear pro se concerning his/her fees for work previously performed as guardian ad litem.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(G); Opinions 13-53; 12-96; 07-153; 06-145; 04-67; 96-128; 96-40; 95-12; 91-137.

Opinion:

         A new full-time judge previously served as a guardian ad litem in a federal case. The jury trial is concluded, but some post-trial issues are pending and an appeal has been filed. The inquiring judge has advised the court and counsel that he/she can no longer serve as guardian ad litem. The federal court has asked the parties and the inquiring judge “to brief that Court on whether my fees are taxable as costs to the losing party and whether or not a new Guardian Ad Litem should be appointed” for the appeal. The judge asks if he/she may (1) voluntarily provide a factual statement or affidavit about his/her former service as guardian ad litem, including facts that bear on the legal question of who should pay his/her fees; (2) respond to the federal court’s questions about whether a new guardian ad litem should be appointed; and (3) appear pro se concerning his/her fees for work previously done as guardian ad litem. 

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A full-time judge “shall not practice law,” but “may act pro se” (22 NYCRR 100.4[G]).

         The answer to all three questions is yes. A full-time judge may voluntarily serve as a fact witness concerning his/her former representation of a client (see e.g. Opinions 13-53; 07-153; 04-67; 96-128; 91-137) may collect fees for legal work earned before assuming full-time judicial office (see e.g. Opinions 96-40; 95-12); and may appear pro se in litigation (see e.g. 22 NYCRR 100.4[G]; Opinions 12-96; 06-145). We also conclude that responding to the federal court’s questions about whether a new guardian ad litem should be appointed also does not constitute the prohibited practice of law and is thus permitted (see 22 NYCRR 100.4[G]).