Opinion 95-136

December 14, 1995

Digest:         Under Rule 36.1 of the Rules of the Chief Judge a city court judge may not accept appointment as a guardian, guardian ad litem, or conservator except under circumstances defined in Rule 36.1(e) .

Rules:          22 NYCRR 36.1; Opinions 93-98; 93-85

Opinion:

         A judge of a city court who is permitted to practice law asks whether it would be permissible to “accept appointments from judges of the superior courts ... and to then serve as a court-appointed Referee, Guardian, Conservator, etc.”

         Rule 36.1(b) of the Rules of the Chief Judge provides, in part, that “No person shall be appointed who is a relative of or related by marriage to, a judge of the Unified Court System of the State of New York.”

         In Opinion 93-85, this Committee interpreted 22 NYCRR 36.1(b)(1) as prohibiting a city court judge from accepting appointment as a guardian ad litem, one of the “fiduciaries” governed by the provisions of 22 NYCRR 36.1. However, in Opinion 93-98 we noted that the prohibition contained in 22 NYCRR 36.1(b)(1), is subject to defined exceptions, including those set forth in 22 NYCRR 36.1(e). Thus, a part-time justice may, for example, accept appointment as a law guardian pursuant to section 243 of the Family Court Act or as guardians ad litem pursuant to Section 403-a of the Surrogate’s Court Procedure Act, or the Mental Hygiene Legal Service.

         As to serving as a referee in the Supreme Court, that presents a question of law which the Committee does not address.