Opinion 96-86

September 5, 1996

Digest:         A judge may not appoint an attorney as a referee in a foreclosure matter or as a guardian ad litem in a pending litigation, where the attorney’s father is a sitting Supreme Court justice.

Rules:          22 NYCRR 36.1

Opinion:

         A judge asks whether it is permissible to appoint an attorney as a referee in a foreclosure matter or as a guardian ad litem in a pending litigation where the attorney’s father is a sitting Supreme Court justice. (Presumably, the appointment would be compensated.)

         Part 36 of the Rules of the Chief Judge covers the appointment of guardians ad litem, receivers, referees, and the like. It states in part:

(a) All appointments of guardians, guardians ad litem, court evaluators, attorneys for alleged incapacitated persons (under Article 81 of the Mental Hygiene Law), receivers and referees shall be made by the judge authorized by law to make the appointment upon evaluation by that judge of the qualifications of candidates for appointment.... The appointing judge shall be solely responsible for determining the qualifications of any appointee.

(b) (1) 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. This provision shall apply only to known relatives of judges and not to the professional associates of those relatives.

         Part 36 of the Rules of the Chief Judge is very specific and self-explanatory. The answer to this inquiring judge is that he/she may not appoint the relative to another judge as a referee in a foreclosure matter or as a guardian ad litem, unless an exception is available under subparagraph (e), e.g., the appointment is without compensation.