Joint Opinion 95-166 and 97-78

September 11, 1997

Digest:         (1) A judge may appoint a relative of another judge as a law guardian provided the person appointed is selected from the current list of approved law guardians established by the appropriate Appellate  Division, without regard to whether the appointment is in the Family Court, pursuant to Family Court Act §243 or in the Supreme Court pursuant to Judiciary Law §35(7), and irrespective of whether the law guardian’s fee is paid by the parties or from public funds. (2) The prohibition against appointments of relatives of other judges has no application to the assignment of counsel in criminal cases. (3) An attorney who is a law guardian under Family Court Act §243, whose sibling now serves as Family Court judge may continue to serve as law guardian provided that any appointment of the sibling is made by an independent legal authority and the judge is not involved in any way in the appointment.

Rule:            Family Court Act §243, Judiciary Law 335(7); 22 NYCRR 36.1(b)(1); 36.1(e)(1); 100.3(C)(3); 100.3(E)(1)(e),

Opinion:

         Two judges, in separate inquiries, raise questions concerning the scope, application and implementation of Part 36 of the Rules of the Chief Judge. 22 NYCRR Part 36.

         Part 36 of the Rules of the Chief Judge establishes standards and procedures for the appointment by judges of "guardians, guardians ad litem, attorneys for alleged incapacitated persons (under Article 81 of the Mental Hygiene Law), receivers, persons designated to perform services for a receiver and referees". Section 36.1(b)(1) provides 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, within the sixth degree or relationship.

Paragraph (e)( 1) of Rule 36.1 provides that:

         (e) The provisions of this Part shall not apply to:

(1) appointments of law guardians pursuant to section 243 of the Family Court Act, guardians ad litem pursuant to section 403-1 of the Surrogate's Court Procedure Act, or the Mental Hygiene Legal Services;

         Under section 243 of the Family Court Act, each of the Appellate Divisions may designate a panel of attorneys deemed qualified to be appointed as law guardians in proceedings in the Family Court. Under the exception above quoted, if a relative of a judge is included in a list of attorneys deemed qualified to be appointed as a law guardian, he or she may be appointed as a law guardian by another judge or justice of the Unified Court System.

         Thus, in response to inquiry 97-78, the fact that, in a particular instance, the order of appointment may provide that payment to the law guardian is to be made by the parties does not alter the exclusion of such an appointment from the prohibition. That is, as long as the attorney has been appointed pursuant to Family Court Act §243, section 36.1(b)(1) does not apply, irrespective of whether the law guardian's fee is paid from public funds or by the parties.

         The inquirer further notes that Judiciary Law §35(7) provides for appointment in the Supreme Court of law guardians in custody cases from the Appellate Division law guardians list. The judge asks whether Supreme Court appointments in such cases are also covered by section 36.1(e). In the opinion of the Committee, the answer is "yes." Section 35(7) of the Judiciary Law permits the Supreme Court to appoint law guardians in cases in which the Family Court would have jurisdiction had the action or proceeding been initiated in Family Court. Thus, while Family Court Act §243 provides for the designation of a panel of law guardians for the Family Court, this does not mean that the exclusion from the prohibition on appointments as provided for in section 36.1(e) is restricted to service in the Family Court, where, as here, the Judiciary Law permits such person to be appointed in Supreme Court actions or proceedings that could have been brought in Family Court. In short, if the appointment is made from the Appellate Division law guardian list, that suffices to qualify the relative for appointment under Judiciary Law §35(7).

         Further, as to whether relatives of judges may be appointed as assigned counsel in criminal actions, Part 36 is directed to a specified list of appointments which does not include assignment as counsel in criminal cases. Accordingly, the prohibition set forth in section 36.1(b)(1) has no application, and relatives of judges may be appointed in criminal proceedings.

         In inquiry 95-166, the judge, a recently elected County Court judge who also serves as Family Court judge and Surrogate, advises the Committee that the judge's sister, an attorney practicing in the county, has been on the law guardian panel in the Family Court for many years and "was one of the most active participants prior to my taking office. I have also been advised by other judges in this geographical area, and by practitioners, that she is an excellent law guardian."

         The judge fully realizes that no appointment of his/her sister may be made by the judge, and that she may not appear before the judge in any proceeding. 22 NYCRR 100.3(C)(3); 100.3(E)(1)(e). Further, the judge believes that "it is inappropriate for her to be appointed even on a rotating basis by the Family Court clerk as that also might create an appearance of impropriety."

         Given such circumstances, the judge asks:

. . . whether or not it would be proper for her to be appointed in a case where I have recused myself for other reasons. If such an appointment is permissible, a further question arises as to whether the appointment should be made by the judge assigned to hear the case, or whether such appointment can be made by the court clerk.

          The Committee perceives no per se barrier to appointment of the judge's sister as a Family Court law guardian pursuant to section 243 of the Family Court Act. 22 NYCRR 36.1(e)(1). The appointment, however, may not be in the judge's name. All such appointments must be made by a person with independent legal authority and the judge should not be involved in any capacity whatsoever so as to avoid any appearance of nepotism and favoritism. 22 NYCRR 100.3(C)(3).