Opinion 20-210

January 28, 2021

Digest:         Where a law firm’s managing partner is the sibling of a New York State judge, a Surrogate’s Court judge in a county specified in Section 36.1(a)(11) may not appoint any attorney of the law firm to serve as the Public Administrator, nor may the Surrogate appoint the law firm as counsel to the Public Administrator. The Surrogate may nonetheless appoint eligible members of the law firm who are on the Part 36 list to serve in other fiduciary positions except as Public Administrator and counsel to the Public Administrator.

Rules:          22 NYCRR 36.0; 36.1(a)(1)-(11); 36.2(c)(1); 100.2; 100.2(A); 100.2(C); 100.3(C)(3); Opinions 17-127; 04-94; 94-05.

Opinion:

         A Surrogate’s Court judge in one of the counties specified in SCPA Article 12 and Section 36.1(a)(11) of the Rules of the Chief Judge asks if it is ethically permissible to appoint a particular law firm as counsel to the Public Administrator (PA), given that a sibling of that firm’s managing partner is a judge of the Unified Court System, and to appoint a different attorney from that law firm (i.e. not the managing partner) to serve as the PA.¹ The Surrogate also asks if they may appoint other attorneys of that law firm to other fiduciary positions outlined in Section 36.1(a)(1)-(10).

         Preliminarily, there are two key segments of Part 36 of the Rules of the Chief Judge which pertain to this inquiry. The first is Section 36.1(a)(11) (bold bracketed comments are our own explanatory notes):

(a) Except as set forth in subdivision (b) of this section [not applicable to this inquiry], this Part shall apply to the following appointments made by any judge or justice of the Unified Court System: … (11) a public administrator within the City of New York and for the Counties of Westchester, Onondaga, Erie, Monroe, Suffolk and Nassau and counsel to the public administrator, except that only sections 36.2(c) [quoted below] and 36.4(f) [this section addresses approval and reporting compensation received by counsel to the public administrator] of this Part shall apply, and that section 36.2(c) of this Part shall not apply to incumbents in these positions until one year after the effective date of this paragraph.

The second pertinent paragraph is Section 36.2(c)(1):

(c) Disqualification from appointment. (1) No person shall be appointed who is a judge or housing judge of the Unified Court System of the State of New York, or who is a relative of, or related by marriage to, a judge or housing judge of the Unified Court System within the fourth degree of relationship.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must refrain from lending the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]). A judge must exercise the power of appointment “impartially and on the basis of merit” and “avoid nepotism and favoritism” (22 NYCRR 100.3[C][3]; accord 22 NYCRR 36.0; Opinion 17-127).

Appointment as Public Administrator or Counsel to the Public Administrator

         Initially, we note that this law firm’s managing partner is personally disqualified from serving as the PA or counsel to the PA in this county pursuant to Sections 36.2(c)(1) and 36.1(a)(11), as the attorney is related to a judge of the Unified Court System within the fourth degree of relationship.²

          We will next address whether there would be an appearance of impropriety should the Surrogate either appoint another attorney in the firm (i.e. not the managing partner) to serve as PA or appoint the law firm itself as counsel to the PA.

         We have advised that the test for an appearance of impropriety is “whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out [judicial] responsibilities with integrity, impartiality and competence is impaired” (Opinion 04-94). Indeed, such perceptions “are often subjective and therefore must be given wide scope” (Opinion 94-05). The office of PA is the preeminent fiduciary position in the counties specified in Section 36.1(a)(11). It is prestigious and carries with it the possibility of earning and receiving substantial compensation for services rendered. The same is true of the office of counsel to the PA. The Surrogate is solely responsible for fixing and approving the commissions of the PA and the fees of counsel to the PA. The fact that the managing partner of the firm under consideration is a sibling to a judge of the Unified Court System would invite the perception of favoritism and the possibility of advancing the private interests of others, if a member of the firm served as PA or if the firm itself served as counsel to the PA. It could easily create the impression that the appointments were not made impartially based on merit. Accordingly, we advise the Surrogate to refrain from appointing any member of this law firm to serve as PA or as counsel to the PA.

Appointments to Other Fiduciary Positions Under Part 36

         Of course, the law firm’s managing partner is likewise personally disqualified from appointments to other fiduciary positions governed by Part 36, because they are related to a judge of the Unified Court System within the fourth degree of relationship.

         Unlike the position of PA or counsel to the PA, appointments to the other fiduciary positions set forth in Section 36.1(a)(1)-(10) occur occasionally as dictated by the needs of a particular case. Ordinarily such appointments are made pursuant to a list of eligible appointees. Appointments must be made made “on the basis of merit, without favoritism, nepotism, politics or other factors unrelated to the qualifications of the appointee or the requirements of the case” (22 NYCRR 36.0; accord 22 NYCRR 100.3[C][3]).

         Absent any specific prohibition or disqualification, we believe the inquiring Surrogate may appoint partners or associates of the firm who are eligible appointees to serve in any of the fiduciary positions outlined in Section 36.1(a)(1)-(10), even though the firm’s managing partner is ineligible.

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¹ A sibling by blood or marriage is a second-degree relative.

² We note that Section 36.1(a)(11), on its face, appears to identify 11 specific counties where it applies. Presumably, in New York’s other 51 counties, appointments of the PA and counsel to the PA are not subject to the restrictions of Part 36.