Opinion 19-125

October 24, 2019

Digest:         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.

Rules:          Judiciary Law § 471; 22 NYCRR 36.1(a)(1); 36.1(b)(1)-(3); 36.2(c)(1); 100.2; 100.2(A); 100.4(G); 100.6(B)(1)-(4); Opinions 18-17; 12-173; 09-103; 03-70.

Opinion:

         The inquiring part-time attorney judge was appointed as guardian of the person and property of a severely developmentally disabled individual before he/she assumed the bench. The judge asks if he/she may continue to function in that role, as needed, beyond the one-year mark after assuming the bench. We understand that the appointment is a continuing one that will not, on its face, require re-appointment.

         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 part-time judge may nonetheless accept private employment “provided that such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties” (22 NYCRR 100.6[B][4]) and may practice law, subject to certain restrictions (see 22 NYCRR 100.4[G]; 100.6[B][1]-[3]). Of particular relevance here, under Part 36, a judge of the Unified Court System is not eligible for appointment as a guardian (see 22 NYCRR 36.1[a][1]; 36.2[c][1]), unless an exception applies (see 22 NYCRR 36.1[b][1]-[3]).

         The present judge is not seeking a prohibited appointment or re-appointment under Part 36 but is instead asking if he/she may continue and complete his/her pre-existing representation pursuant to an appointment made before he/she assumed the bench. As we previously observed, Part 36 does “not prohibit or address continued representation as law guardian of existing clients by” a new part-time attorney judge, who is, unlike a full-time judge, permitted to practice law (Opinion 03-70). Significantly, we are aware of no ethics rules prohibiting the representation, as the guardianship matter cannot have originated in this judge’s court and is necessarily before a full-time judge (cf. 22 NYCRR 100.6[B][2]; Opinion 12-173; Judiciary Law § 471).

         Accordingly, we reaffirm our prior conclusion that a judge who is permitted to practice law, i.e., a part-time attorney judge, may continue to represent clients, by assignment, pursuant to 22 NYCRR 36.1(a)(1), provided the assignment took place before the judge assumed the bench (see Opinion 03-70). On further consideration, we conclude 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.