Opinion 23-104
October 26, 2023
Digest: A Surrogate’s Court judge is not required to remove a Public Administrator who has served for many years if an associate in the Public Administrator’s law firm marries the child of a New York State judge.
Rules: 22 NYCRR 36.0; 36.1(a)(11); 36.2(c)(1); 100.2; 100.2(A); 100.2(C); 100.3(C)(3); Opinions 20-210; 09-60.
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 retain the county’s long-time Public Administrator (PA) if a newly admitted attorney, who is an associate in the PA’s law firm, marries another judge’s child. The PA is a partner in the law firm. The judge also requests guidance as to whether other attorneys from the firm can be appointed in the future.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Moreover, a judge must refrain from lending the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]) and must exercise the power of appointment impartially avoiding either nepotism or favoritism (see 22 NYCRR 100.3[C][3]; accord e.g. 22 NYCRR 36.0 [noting that the Part 36 rules are intended to promote “public trust in the judicial process” by helping “ensure that appointees are selected 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”]).
Under Section 36.1(a)(11), appointments of PAs and their counsel in New York City and six specified counties are subject to Section 36.2(c) (“Disqualifications from appointment”).[1] Accordingly, in those counties, a person may not be appointed as PA or as counsel to the PA if they are “a relative of, or related by marriage to, a judge … of the unified court system within the fourth degree of relationship” (22 NYCRR 36.2[c][1]).
As we noted in Opinion 20-210, “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.”
In Opinion 20-210 the facts differed substantially from the matter presently before us. There, the Surrogate asked if it was ethically permissible to appoint a particular law firm as counsel to the PA when a sibling of that firm’s managing partner was a judge of the unified court system. The inquirer also sought to appoint a different attorney from the firm to serve as the PA. We opined that the fact that the managing partner of the firm under consideration was another judge’s sibling 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.” Concluding that such appointment could create the impression that it was not made impartially based on merit, we advised the Surrogate to refrain from appointing any member of the firm to serve as PA or as counsel to the PA.
Here, the current PA was appointed many years ago, and the newly admitted attorney who is to marry the child of a New York State judge is not a partner in the firm, let alone the managing partner. As we noted in Opinion 09-60, the inquiring judge has no appointment to make since the position is already filled. Moreover, we note that the PA is not “a relative, or related by marriage to,” any judge (22 NYCRR 36.2[c][1]). Thus, under the specific facts presented, we conclude that the Surrogate may retain the previously appointed PA.
The inquiring judge also asks if they would be precluded from appointing another attorney from the law firm in the future. As the circumstances and context of this hypothetical future appointment are presently unknown, we decline to address this question.
[1] The counties are Westchester, Onondaga, Erie, Monroe, Suffolk and Nassau.