Public trust in the judicial process demands that appointments by judges be fair, impartial and beyond reproach. Accordingly, these rules are intended to 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.
The rules cannot be written in a way that foresees every situation in which they should be applied. Therefore, the appointment of trained and competent persons, and the avoidance of factors unrelated to the merit of the appointments or the value of the work performed, are fundamental objectives that should guide all appointments made, and orders issued, pursuant to this Part.
Sec. filed Nov. 22, 2002 eff. June 1, 2003.
Amended on March 21, 2017
Section 36.1 Application.
(a) Except as set forth in subdivision (b) of this section, this Part shall apply to the following appointments made by any judge or justice of the Unified Court System:
(2) guardians ad litem, including guardians ad litem appointed to investigate and report to the court on particular issues, and their counsel and assistants;
(3) attorneys for the child who are not paid from public funds, in those judicial departments where their appointments are authorized;
(4) court evaluators;
(5) attorneys for alleged incapacitated persons;
(6) court examiners;
(7) supplemental needs trustees;
(9) referees (other than special masters and those otherwise performing judicial functions in a quasi-judicial capacity);
(10) the following persons performing services for guardians or receivers:
(v) property managers; and
(vi) real estate brokers; and
(11) a public administrator within the City of New York and for the Counties of Westchester, Onondaga, Erie, Monroe, Suffolk and Nassau and counsel to the public administrator, except that only sections 36.2(c) and 36.4(f) of this Part shall apply, and that section 36.2(c) of this Part shall not apply to incumbents in these positions until one year after the effective date of this paragraph.
(b) Except for sections 36.2(c)(6) and 36.2(c)(7) of this Part, this Part shall not apply to:
(1) appointments of attorneys for the child pursuant to section 243 of the Family Court Act, guardians ad litem pursuant to section 403-a of the Surrogate's Court Procedure Act, or the Mental Hygiene Legal Service;
(2) the appointment of, or the appointment of any persons or entities performing services for, any of the following:
(i) a guardian who is a relative of:
(a) the subject of the guardianship proceeding; or
(b) the beneficiary of a proceeding to create a supplemental needs trust; a person or entity nominated as guardian by the subject of the proceeding or proposed as guardian by a party to the proceeding; a supplemental needs trustee nominated by the beneficiary of a supplemental needs trust or proposed by a proponent of the trust; or a person or entity having a legally recognized duty or interest with respect to the subject of the proceeding;
(ii) a guardian ad litem nominated by an infant of 14 years of age or over;
(iii) a nonprofit institution performing property management or personal needs services, or acting as court evaluator;
(iv) a bank or trust company as a depository for funds or as a supplemental needs trustee;
(v) except as set forth in section 36.1(a)(11), a public official vested with the powers of an administrator;
(vi) a person or institution whose appointment is required by law; or
(vii) a physician whose appointment as a guardian ad litem is necessary where emergency medical or surgical procedures are required; or
(3) an appointment other than above without compensation, except that the appointee must file a notice of appointment pursuant to section 36.4(b) of this Part.
Sec. filed Nov. 22, 1985; amds. filed: July 7, 1989; Oct. 29, 1990; July 22, 1993; July 18, 1994; Nov. 21, 1994; July 18, 1996; July 14, 1997; June 11, 1998; Sept. 20, 2000; repealed, new filed Nov. 22, 2002 eff. June 1, 2003.
Added (a)(11) and amended (b)(2)(v) on May 1, 2006
Amended on March 21, 2017
Amended on October 18, 2018
Section 36.2 Appointments.
(a) Appointments by the judge. All appointments of the persons set forth in section 36.1 of this Part, including those persons set forth in section 36.1(a)(10) of this Part who perform services for guardians or receivers, shall be made by the judge authorized by law to make the appointment. In making appointments of persons to perform services for guardians or receivers, the appointing judge may consider the recommendation of the guardian or receiver.
(b) Use of lists.
(1) All appointments pursuant to this Part shall be made by the appointing judge from the appropriate list of applicants established by the Chief Administrator of the Courts pursuant to section 36.3 of this Part.
(2) An appointing judge may appoint a person not on the appropriate list of applicants upon a finding of good cause, which shall be set forth in writing and shall be filed with the fiduciary clerk at the time of the making of the appointment. The appointing judge shall send a copy of such writing to the Chief Administrator. A judge may not appoint a person that has been removed from a list pursuant to section 36.3(e) of this Part.
(3) Appointments made from outside the lists shall remain subject to all of the requirements and limitations set forth in this Part, except that the appointing judge may waive any education and training requirements where completion of these requirements would be impractical.
(c) Disqualifications from appointment.
(1) No person shall be appointed who is a judge or housing judge of the Unified Court System of the State of New York, or who is a relative of, or related by marriage to, a judge or housing judge of the Unified Court System within the fourth degree of relationship.
(2) No person serving as a judicial hearing officer pursuant to Part 122 of the Rules of the Chief Administrator shall be appointed in actions or proceedings in a court in a county where he or she serves on a judicial hearing officer panel for such court.
(3) No person shall be appointed who is a full-time or part-time employee of the Unified Court System. No person who is the spouse, sibling, parent or child of an employee who holds a position at salary grade JG24 or above, or its equivalent, shall be appointed by a court within the judicial district where the employee is employed or, with respect to an employee with statewide responsibilities, by any court in the State.
(4)(i) No person who is a chair or executive director, or their equivalent, of a State or county political party (including any person or persons who, in counties of any size or population, possess or perform any of the titles, powers or duties set forth in Public Officers Law section 73), or the spouse, sibling, parent or child of that official, shall be appointed while that official serves in that position and for a period of two years after that official no longer holds that position. This prohibition shall apply to the members, associates, counsel and employees of any law firms or entities while the official is associated with that firm or entity.
(ii) No person who has served as a campaign chair, coordinator, manager, treasurer or finance chair for a candidate for judicial office, or the spouse, sibling, parent or child of that person, or anyone associated with the law firm of that person, shall be appointed by the judge for whom that service was performed for a period of two years following the judicial election. If the candidate is a sitting judge, the disqualifications shall apply as well from the time the person assumes any of the above roles during the campaign for judicial office.
(5) No former judge or housing judge of the Unified Court System, or the spouse, sibling, parent or child of such judge, shall be appointed, within two years from the date the judge left judicial office, by a court within the jurisdiction where the judge served. Jurisdiction is defined as follows:
(i) the jurisdiction of a judge of the Court of Appeals shall be statewide;
(ii) the jurisdiction of a justice of an Appellate Division shall be the judicial department within which the justice served;
(iii) the jurisdiction of a justice of the Supreme Court and a judge of the Court of Claims shall be the principal judicial district within which the justice or judge served; and
(iv) with respect to all other judges, the jurisdiction shall be the principal county within which the judge served.
(6) No attorney who has been disbarred or suspended from the practice of law shall be appointed during the period of disbarment or suspension.
(7) No person convicted of a felony, or for five years following the date of sentencing after conviction of a misdemeanor (unless otherwise waived by the Chief Administrator upon application), shall be appointed unless that person receives a certificate of relief from disabilities.
(8) No receiver or guardian shall be appointed as his or her own counsel, and no person associated with a law firm of that receiver or guardian shall be appointed as counsel to that receiver or guardian, unless there is a compelling reason to do so.
(9) No attorney for an alleged incapacitated person shall be appointed as guardian to that person, or as counsel to the guardian of that person.
(10) No person serving as a court evaluator shall be appointed as guardian for the incapacitated person except under extenuating circumstances that are set forth in writing and filed with the fiduciary clerk at the time of the appointment.
(d) Limitations on appointments based upon compensation.
(1) No person shall be eligible to receive more than one appointment within a calendar year for which the compensation anticipated to be awarded to the appointee in any calendar year exceeds the sum of $15,000.
(2) If a person has been awarded more than an aggregate of $100,000 in compensation by all courts during any calendar year, the person shall not be eligible for compensated appointments by any court during the next calendar year.
(3) For purposes of this Part, the term compensation shall mean awards by a court of fees, commissions, allowances or other compensation, excluding costs and disbursements.
(4) These limitations shall not apply where the appointment is necessary to maintain continuity of representation of or service to the same person or entity in further or subsequent proceedings.
Sec. filed Nov. 22, 1985; amds. filed: July 22, 1993; Nov. 21, 1994; repealed, new filed Nov. 22, 2002 eff. June 1, 2003.
Amended (c)(1) on Feb 16, 2006.
Amended (d) on Jan. 1, 2008
Amended (d)(2) on Feb. 4, 2008
Amended (c)(4)(i) on Jun. 21, 2016
Amended on March 21, 2017
Amended on October 18, 2018
Section 36.3 Procedure for appointment.
(a) Application for appointment. The Chief Administrator shall provide for the application by persons seeking appointments pursuant to this Part on such forms as shall be promulgated by the Chief Administrator. The forms shall contain such information as is necessary to establish that the applicant meets the qualifications for the appointments covered by this Part and to apprise the appointing judge of the applicant's background.
(b) Qualifications for appointment. The Chief Administrator shall establish requirements of education and training for placement on the list of available applicants. These requirements shall consist, as appropriate, of substantive issues pertaining to each category of appointment— including applicable law, procedures, and ethics—as well as explications of the rules and procedures implementing the process established by this Part. Education and training courses and programs shall meet the requirements of these rules only if certified by the Chief Administrator. Attorney participants in these education and training courses and programs may be eligible for continuing legal education credit in accordance with the requirements of the Continuing Legal Education Board.
(c) Establishment of lists. The Chief Administrator shall establish separate lists of qualified applicants for each category of appointment, and shall make available such information as will enable the appointing judge to be apprised of the background of each applicant. The Chief Administrator may establish more than one list for the same appointment category where appropriate to apprise the appointing judge of applicants who have substantial experience in that category. Pursuant to section 81.32(b) of the Mental Hygiene Law, the Presiding Justice of the appropriate Appellate Division shall designate the qualified applicants on the lists of court examiners established by the Chief Administrator.
(d) Registration. The Chief Administrator shall establish a procedure requiring that each person on a list reregister every two years in order to remain on the list.
(e) Removal from lists. The Chief Administrator may remove any person from any list for unsatisfactory performance or any conduct incompatible with appointment from that list, or if disqualified from appointment pursuant to this Part. A person may not be removed except upon receipt of a written statement of reasons for the removal and an opportunity to provide an explanation and to submit facts in opposition to the removal.
(f) Notwithstanding section 36.3(e), pending a final determination on the issue of removal, the Chief Administrator may temporarily suspend any person from any list upon a showing of good cause that the person’s conduct places clients or wards at significant risk of financial or other harm, or presents an immediate threat to the public.
Sec. filed Nov. 22, 1985; amds. filed: Oct. 29, 1990; July 22, 1993; Nov. 21, 1994; repealed, new filed Nov. 22, 2002 eff. June 1, 2003.
Amended on March 21, 2017
Amended on October 18, 2018
Section 36.4 Procedure after appointment.
(a) Upon appointment of a fiduciary pursuant to this Part, the Court shall forward a copy of the appointment order to the designated fiduciary clerk within two (2) business days.
(b) Notice of appointment and certification of compliance.
(1) Every person appointed pursuant to this Part shall file with the fiduciary clerk of the court from which the appointment is made, within 30 days of the making of the appointment:
(i) a notice of appointment; and
(ii) a certification of compliance with this Part, on such form as promulgated by the Chief Administrator. Copies of this form shall be made available at the office of the fiduciary clerk and shall be transmitted by that clerk to the appointee immediately after the making of the appointment by the appointing judge. An appointee who accepts an appointment without compensation need not complete the certification of compliance portion of the form.
(2) The notice of appointment shall contain the date of the appointment and the nature of the appointment.
(3) The certification of compliance shall include:
(i) a statement that the appointment is in compliance with section 36.2(c) and (d) of this Part; and
(ii) a list of all appointments received, or for which compensation has been awarded, during the current calendar year and the year immediately preceding the current calendar year, which shall contain:
(a) the name of the judge who made each appointment;
(b) the compensation awarded; and
(c) where compensation remains to be awarded
(i) the compensation anticipated to be awarded; and
(ii) separate identification of those appointments for which compensation of $15,000 or more is anticipated to be awarded during any calendar year. The list shall include the appointment for which the filing is made.
(4) A person who is required to complete the certification of compliance, but who is unable to certify that the appointment is in compliance with this Part, shall immediately so inform the appointing judge.
(c) Approval of compensation.
(1) Upon the approval of compensation of more than $500, the court shall file with the fiduciary clerk (i) on such form as is promulgated by the Chief Administrator, a statement of approval of compensation, which shall contain a confirmation to be signed by the fiduciary clerk that the appointee has filed the notice of appointment and certification of compliance; and (ii) a copy of the proposed order approving compensation.
(2) The court shall not sign an order awarding compensation exceeding $500 until such time as the fiduciary clerk has confirmed that the appointee has properly filed the notice of appointment and certification of compliance. No compensation shall be awarded to an appointee who has not properly filed the notice of appointment and certification of compliance.
(3) Each approval of compensation of $5,000 or more to appointees pursuant to this section shall be accompanied by a statement, in writing, of the reasons therefor by the judge. The judge shall file a copy of the order approving compensation and the statement with the fiduciary clerk at the time of the signing of the order. (4) Compensation to appointees shall not exceed the fair value of services rendered. Appointees who serve as counsel to a guardian or receiver shall not be compensated as counsel for services that should have been performed by the guardian or receiver.
(5) Unless otherwise directed by the court, a fiduciary appointee may utilize supporting attorneys and staff in their firm without additional Court approval. Support attorneys and staff may perform tasks only under the fiduciary appointee's direct supervision; all appearances and reports must be made by the fiduciary appointee; and all compensation earned by support attorneys or personnel shall be charged to the appointee for purposes of compensation limits pursuant to this Part.
(d) Reporting of compensation received by law firms. A law firm whose members, associates and employees have had a total of $50,000 or more in compensation approved in a single calendar year for appointments made pursuant to this Part shall report such amounts on a form promulgated by the Chief Administrator.
(e) Reporting of compensation received by a referee to sell real property.
(1) A referee to sell real property shall make a letter application to the court to authorize payment over $1,100 for a "good cause" adjournment or if there is a rebid or resale.
(2) Upon approval of compensation exceeding $1,100 to a referee to sell real property, the Court shall file a copy of its compensation order with the appropriate fiduciary clerk, who shall generate the required Unified Court System forms and monitor compliance and filing with the Part 36 processing unit. Payment of such compensation may not be made until the plaintiffs in the matter have received a copy of the court's compensation order.
(3) Exception. The procedure set forth in section 36.4(b)(1) shall not apply to the appointment of a referee to sell real property and a referee to compute whose compensation for such appointments is not anticipated to exceed $1,100.
(f) Approval and reporting of compensation received by counsel to the public administrator.
(1) A judge shall not approve compensation to counsel to the public administrator in excess of the fee schedule promulgated by the administrative board of the public administrator under SCPA 1128 unless accompanied by the judge's statement, in writing, of the reasons therefor, and by the appointee's affidavit of legal services under SCPA 1108 setting forth in detail the services rendered, the time spent, and the method or basis by which the requested compensation was determined.
(2) Any approval of compensation in excess of the fee schedule promulgated by the administrative board of the public administrator shall be reported to the Office of Court Administration on a form promulgated by the Chief Administrator and shall be accompanied by a copy of the order approving compensation, the judge's written statement, and the counsel's affidavit of legal services, which records shall be published as determined by the Chief Administrator.
(3) Each approval of compensation of $5,000 or more to counsel shall be reported to the Office of Court Administration on a form promulgated by the Chief Administrator and shall be published as determined by the Chief Administrator.
Sec. filed Nov. 22, 1985; amd. filed Oct. 29, 1990; repealed, new filed Nov. 22, 2002 eff. June 1, 2003.
Added (e)(1)-(e)(3) on May 1, 2006
Amended (d) on Jan. 3, 2008
Amended on March 21, 2017
Amended on October 18, 2018
Amended (e) on March 26, 2019
Section 36.5 Publication of appointments.
(a) All forms filed pursuant to section 36.4 of this Part shall be public records.
(b) The Chief Administrator shall arrange for the periodic publication of the names of all persons appointed by each appointing judge, and the compensation approved for each appointee.
Sec. filed Nov. 22, 1985; repealed, new filed: July 22, 1993; Nov. 22, 2002 eff. June 1, 2003.
Amended on October 18, 2018