Opinion 94-38

April 28, 1994

Digest:         A judge who appointed an attorney guardian in a competency proceeding may also retain the same attorney to represent an estate in which the judge is both co-fiduciary and co-beneficiary where there is no appearance of impropriety and where the two matters are totally unrelated. The judge should not act on the fixing of fees of the attorney even if such fees are not challenged.

Rules:          22 NYCRR 100.2 and 100.5(d), Opinion 91-20, Vol. VII

Opinion:

         A judge inquires as to the propriety of appointing an attorney guardian in a competency proceeding and also retaining the same attorney to represent an estate in which the judge is both co-fiduciary and co-beneficiary. The judge states that the two matters are totally unrelated.

         The attorney was appointed guardian by reason of his prior experience and special skill and is extremely qualified to serve in that capacity. The judge will exercise recusal should there be objections to the guardian's fee.

         The judge is also a 50% residuary beneficiary of a modest estate and is named co-fiduciary with the spouse of the beneficiary of the remaining 50%. No contest of the will or other litigation is anticipated. Both fiduciaries signed a retainer agreement to pay full fees at the firm's usual billing rates.

         The judge requests an opinion of the propriety of participation in both matters.

         A judge must at all times avoid impropriety or the appearance thereof (22 NYCRR 100.2). The appearance of impropriety could superficially result from the dual proceedings. However, the attendant circumstances, namely: unrelated matters; recusal if a challenge to guardian's commissions and allowances; a modest estate wherein the judge is both co-fiduciary and co-beneficiary; full counsel fees at customary rates; and absence of litigation, all militate against impropriety.

         Accordingly, the Committee concludes that there is no impropriety arising from the stated relationships. The attorney may act as guardian in the competency proceeding and also in representing the estate. However, the judge may not act on the fixing of the fees of the guardian even if the amount sought is not challenged. The attorney is the guardian of an incompetent and by virtue thereof it is not possible to obtain full and informed consent as to the guardian's fee.

         Moreover, should the attorney subsequently appear before the judge in behalf of another client while still representing the estate the judge must recuse him/herself.

         Further, should the attorney subsequently appear before the judge in behalf of another client after his representation of the estate is completed, the judge must make disclosure for two years thereafter. (See Opinion 91-10, Vol. VII.)

         In concluding that the judge may act as co-fiduciary in the estate the Committee assumes the judge has obtained the approval of the Chief Adminiatrator of the Courts if required by 22 NYCRR 100.5(d)(2).