Opinion 22-56/22-67
June 30, 2022
Digest: A judge who appoints fiduciaries in a guardianship part (1) may direct court staff to update the Part 36 fiduciary list by contacting the listed individuals to inquire whether they are currently accepting such assignments; (2) may personally inquire whether a prospective appointee is available to accept assignment in a particular case, even if the Alleged Incapacitated Person is indigent, provided the judge avoids undue pressure or coercion; and (3) may also direct court staff to make such inquiry on the judge’s behalf.
Rules: Mental Hygiene Law § 81.07(b); 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(7); 100.3(C)(2); 22 NYCRR pt 1200, Rules 1.1(b), 1.7(a), 1.9-1.12, 1.16; Opinions 21-149; 17-114; 09-68; 90-73.
Opinion:
The inquiring judges preside in guardianship parts and regularly appoint attorneys as Part 36 fiduciaries. Such appointments must often be made and acted upon very quickly due to statutory time constraints.1 Frequently, the appointment must be made “for low remuneration or no fee.” Broadly speaking, their inquiries focus on updating the Part 36 list generally and on reaching out to potential appointees when considering making an appointment in a particular case; we will discuss these matters in detail below.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must “respect and comply with the law” (id.), dispose of all judicial matters “promptly, efficiently and fairly” (22 NYCRR 100.3[B][7]), and require staff, court officials and others subject to the judge’s direction and control to observe standards of fidelity and diligence that apply to the judge (see 22 NYCRR 100.3[C][2]). Further, a judge must not lend the prestige of judicial office to advance the private interests of the judge or others; nor may a judge convey or permit others to convey the impression that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]).
Updating the Part 36 List
In the first inquiry (22-56), the judge asks if they may direct their law clerk, court-attorney referee, or resource coordinator to “call all Part 36 fiduciaries (Guardians, Attorneys for the Alleged Incapacitated Person and Court Evaluators) to inquire whether they are still actively accepting Guardianship appointments.” The judge’s primary concern is to make sure that prospective appointees will be interested and available to conduct hearings within the short period mandated for special proceedings, as the fiduciary list “is vast and has not been updated in some time.”
We can see no impropriety in a judge directing court staff to contact potential Part 36 appointees to ascertain whether they are currently accepting assignments on the types of cases for which they are listed as qualified on the Part 36 Fiduciary Eligibility List. Indeed, considering the statutory time period and the possible serious consequences of guardianship proceedings, the judge has a heightened interest in ensuring the list is up-to-date in order to dispose of such matters “efficiently” (22 NYCRR 100.3[B][7]).2
Checking Appointee Availability in a Particular Case
Both judges ask about reaching out to potential appointees when considering making an appointment in a particular case. This communication would be made “out of respect for their individual practice needs and personal considerations” and to “ensure timely representation for the Alleged Incapacitated Person.”
In a regularly compensated matter (as opposed to a matter that must be undertaken pro bono or for a reduced fee), we conclude the judge or their law clerk or other court staff may directly inquire whether the Part 36 appointee is available to accept assignment. In making an effort to ascertain the availability of an appointee before making an assignment, the judge complies with the requirement to “dispose of ... judicial matters promptly, efficiently and fairly” (see 22 NYCRR 100.3[B][7]).
However, the judges also specifically ask if they or their court staff may ask Part 36 fiduciaries whether they are available to accept appointment in cases where the Alleged Incapacitated Person is indigent. In essence, the question is whether a judge may personally, or through the judge’s law clerk, court-attorney referee, or resource coordinator, solicit pro bono or low-fee representation from the Part 36 list.
Our prior opinions call for some caution when soliciting pro bono representation to avoid both actual coercion and its appearance. While we have drawn the line differently over time in different contexts, we most recently considered an instance where a judge wished to solicit pro bono representation for a defendant in a consumer debt case. In Opinion 21-149, distinguishing an earlier opinion, we said:
Here, ... the unrepresented individual is a party litigant, specifically a defendant in a consumer debt case, and the judge is aware of specific attorneys and organizations that provide pro bono representation for defendants in such consumer debt matters. On these facts, we conclude that, absent any attempt to coerce representation, it is permissible for a judge to solicit pro bono representation for a defendant in the matter. However, the judge should not personally request the pro bono assistance because “the attorneys should not have to indicate [to the judge] whether they would accept or decline pro bono appointment” (Opinion 90-73 [pro bono acceptances “should be returned not to the judge, but to the clerk”]). Instead, consistent with Opinions 09-68 and 90-73, the judge may empower their court staff to, on behalf of unrepresented parties, solicit pro bono representation provided that the judge does not personally participate in such requests.
We note that this precedent, if followed here, would allow the judge to direct their law clerk or other court staff to make this request on the judge’s behalf, while prohibiting the judge from doing so personally. Our unstated assumption in Opinion 21-149, however, was that an attorney may feel more free to refuse a judge’s request to undertake a pro bono representation (or less pressured to acquiesce) when that request is conveyed by the judge’s law clerk or other court staff, than when speaking directly to the judge.
On further reflection, we conclude this restriction is unnecessary. When a judge personally asks an attorney to undertake a pro bono representation of a party litigant, it is true the attorney’s responses are somewhat constrained; the attorney cannot simply ignore or flippantly dismiss the request. But the attorney must comply with the Rules of Professional Conduct and thus may have an independent ethical obligation to decline the representation (see e.g. 22 NYCRR pt 1200, Rules 1.1[b], 1.7[a], 1.9-1.12, 1.16). This surely gives an attorney some discretion to respectfully decline a specific representation, notwithstanding a judge’s personal request, provided the judge avoids undue pressure or coercion.
Thus, we conclude that the judge or their law clerk or other court staff may directly inquire whether the Part 36 appointee is available to accept assignment in a particular case, even where the Alleged Incapacitated Person is indigent. While the judge must be mindful of the need to avoid undue pressure or coercion in such matters, we again emphasize that timely appointment of a suitable fiduciary helps judges dispose of a guardianship proceeding “promptly, efficiently and fairly” (22 NYCRR 100.3[B][7]).
Finally, we consider the effect of our present conclusions on certain prior opinions:
• Opinion 21-149 is modified to reflect that a judge may personally request pro bono assistance for an unrepresented defendant in a consumer debt case, provided the judge avoids undue pressure or coercion in making the request. Indeed, where the judge is reaching out to “specific attorneys and organizations that provide pro bono representation for defendants in such consumer debt matters” (id.), it seems especially unlikely to be perceived as coercive.
• We see no need to modify Opinion 17-114, in which we said a judge presiding over a civil matter involving allegations of sexual abuse committed by a non-party minor should not directly or indirectly solicit pro bono representation for the non-party minor, as it is readily distinguishable from the present opinion (cf. Opinion 21-149 [distinguishing it]).
• We also find Opinion 90-73 readily distinguishable. The inquiring judge there wished to distribute a form which asked “attorneys to volunteer to represent poor persons on a pro bono basis,” invoked the rules of attorney ethics, and then specifically asked each attorney “to indicate whether they would accept or decline appointment” and “to return the form to the judge” (id. [emphasis added]). From the perspective of a practicing attorney, the judge’s proposed form and instructions could readily have created an impression that they must either declare in writing their willingness to accept pro bono appointments in unspecified future matters, or else go on record, in a writing addressed directly to the judge, as categorically unwilling to accept such appointments. Our advice thus had two important prongs to avoid the appearance of coercion. We said (1) “the attorneys should not have to indicate whether they would accept or decline pro bono appointment; rather the forms should be filled out only by those attorneys who agree to accept” and (2) the acceptances “should be returned not to the judge, but to the clerk” (id.). We see no reason to disturb that advice on the facts of Opinion 90-73. Here, by contrast, the inquiring judges would be reaching out to potential Part 36 appointees in individual cases as the need arises, which is inherently less coercive.
________________________
1 Mental Hygiene Law § 81.07(b) requires that the Order to Show Cause seeking the appointment of an Article 81 guardian set the date for the proceeding “no more than twenty-eight days from the signing of the order to show cause.” The appointed fiduciaries are expected to perform their assigned duties within that time frame.
2 Since the judge did not ask whether the judge may personally update the fiduciary list by personally contacting each and every listed fiduciary, we assume (but do not decide) that the judge has determined that it is preferable for court staff to do so.