In 1998, The New York City Bar Government Ethics Committee Cites Two Surrogates For Wrongdoing

Contributions to Campaigns of Candidates
For Surrogate, and Appointments
By Surrogates of Guardians Ad Litem

Report of the Committee on Government Ethics
of the Association of the Bar
of the City of New York

July 1998

The Committee on Government Ethics of The Association of the Bar of the City of New York conducted a study of the campaign finances of four Surrogate's Court judges to determine whether there is a correlation between lawyers' campaign contributions and guardian ad litem appointments. The Committee found that, in two cases, there is an apparent correlation between campaign contributions and such appointments.

This report provides background information regarding guardian ad litem appointments, describes the Committee's factual findings, and proposes a number of ways to ensure that appointments of guardians ad litem are not influenced, and do not appear to be influenced, by whether a lawyer contributed to the Surrogate's election campaign. These proposals include (a) establishing a blind or rotating appointment process; (b) requiring that Surrogate's Court campaigns make separate disclosure to the Office of Court Administration of contributions received from lawyers; and (c) requiring strict adherence to Ethics Opinion 289 of the New York State Bar Association, which provides that judicial candidates should not accept campaign contributions from lawyers who have cases before the candidate and that lawyers should not contribute to the campaigns of judicial candidates before whom the lawyers have a pending case.

I. BACKGROUND

Judges of the Surrogate's Courts in New York City are elected to fourteen-year terms. N.Y. Jud. Law § 12(c). There are currently six Surrogates in New York City. The Committee reviewed the campaign finances and appointment practices of four Surrogates in New York City: Manhattan Surrogate Renee R. Roth, whose term runs from 1997 to 2011;1 Manhattan Surrogate Eve Preminger, whose term runs from 1990 to 2004; Kings County Surrogate Michael H. Feinberg, whose term runs from 1997 to 2011, and Queens County Surrogate Robert L. Nahman, whose term runs from 1991 to 2005.2

The Surrogate's Courts have jurisdiction over all actions and proceedings relating to the affairs of decedents, probate of wills, administration of estates and actions and proceedings pertaining to administration of estates, guardianship of the property of minors, and "such other actions and proceedings, not within the exclusive jurisdiction of the supreme court, as may be provided by law." Id. § 12(d).

Many proceedings in the Surrogate's Courts involve minors or persons under a legal disability or, in the case of a trust or estate, beneficiaries whose identity will not be finally determined until some future date. If proceedings with respect to these matters are to be conclusive upon such persons, they must be legally represented. That representation is the role of the guardian ad litem in a judicial proceeding. N.Y. Surr. Ct. Proc. Act § 404(3) (duties of a guardian ad litem are to represent and protect the interests of persons under disability or unknown beneficiaries). Thus, the role of guardians ad litem is an important and substantive one, and the quality of their appointments is of substantial concern to the Bar.

The Current Appointment Process

Part 36 of the Rules of the Chief Judge governs the appointments of a guardian ad litem. A guardian ad litem must be an attorney admitted to practice in New York State, and cannot be a family member or relative of the judge. 22 N.Y.C.R.R. Part 36.1. In addition, no person may receive more than one appointment within a 12-month period for which the compensation is anticipated to be in excess of $5,000, except where the appointing judge determines that unusual circumstances of continuity of representation or familiarity with a case require an appointment for which compensation would exceed that amount. In such event, the judge must set forth in writing the reason for the exception. 22 N.Y.C.R.R. Part 36.1(c).

A guardian ad litem is entitled to receive a reasonable compensation in such proportion as directed by the Court. (SCPA §405).3 Compensation is payable from the estate, from the person under disability or from both, as the court directs.

Part 36.2(a) requires the Chief Administrator of the Courts to review applications from attorneys seeking such appointments and to maintain lists of applicants for appointment for use by the appointing judges. The lists maintained by the Chief Administrator are to contain information that will apprise the appointing judge of the applicant's background and "may be differentiated by the type of appointment and area of special expertise." The list of potential appointees maintained by the Chief Administrator includes information regarding degrees, licenses, area of practice or specialization, number and types of prior appointments, and whether or not the attorney has attended any court or bar association-sponsored programs relating to duties of any Part 36 appointee or related topics.4

Part 36.1(a) provides that the Surrogate may make appointments from the list or appoint someone not included on the list if the Surrogate believes that person is more qualified:

. . . The appointing judge may select the appointee from the list of applicants established by the Chief Administrator of the Courts pursuant to section 36.2(a) of this Part. Except for the appointment of court evaluators, should the appointing judge decide that a person or institution not included on the list of applicants is better qualified for appointment in a particular matter, either because of prior experience with the ward or estate, or because of particular expertise necessary to the case, the judge may appoint that person or institution, and in such instance shall place the reasons for such appointment and the qualifications of such appointee on the record. The appointing judge shall be solely responsible for determining the qualifications of any appointee.

(emphasis added)

II. THE FINDINGS OF THE COMMITTEE

The Committee found that the campaign financing and appointment practices of Surrogates Roth and Feinberg give rise to at least the appearance that their appointments of guardians ad litem may take into account whether an attorney made a campaign contribution, and not solely the qualifications of the attorney appointed. The Committee also found that the practices of Surrogate Preminger do not give rise to this appearance. The findings regarding Surrogate Preminger are affected by the fact that the candidate herself contributed 77% of the total funds that her campaign received, thus obviating the need to raise money from those who would seek appointments from the candidate once she was elected.5 Finally, Surrogate Nahman, who did not face a primary election, but was nominated by the Democratic Party after the winner of the primary withdrew from the race, raised and spent less than $1,000 on his campaign. As a result, his campaign was not required to file itemized campaign finance disclosure statements with the Board of Elections.

The Committee's analysis focused on two numerical calculations. First, the Committee determined the percentage of appointments the Surrogate made to campaign contributors once fund-raising began. If a high percentage of appointments were given to campaign contributors, there is at least an appearance that appointments were influenced by the appointees' contributions or the possibility of receiving such contributions, and not the best interests of those to be represented by the appointee.

With respect to Surrogates Roth and Preminger, the Committee also calculated the percentage of the total campaign funds raised that were contributed by lawyers who later received appointments and, in the case of Surrogate Roth, lawyers who had received appointments during her first term in office. (This analysis was not done for Surrogate Feinberg, because he has been on the bench a relatively short time and therefore has not yet made enough appointments for such an analysis to be meaningful.) If a campaign was heavily reliant on contributions from appointees, it gives rise to the appearance of a quid pro quo. On the other hand, a campaign that did not rely substantially on contributions from appointees might have little incentive to make appointments on the basis of a contribution. This analysis is complicated by the fact that many Surrogate's Court practitioners may contribute to the campaign of a highly qualified but impecunious candidate because of the candidate's merits and without the expectation or purpose of increasing the chances of receiving a guardian ad litem appointment. That fact, does not, however, eliminate the appearance of favoritism created by an appointment to a lawyer who has made a campaign contribution.

A. Surrogate Roth
# From the time Surrogate Roth's campaign committee began fund-raising on December 20, 1995 through February 24, 1998, 66% of her appointments went to individual campaign contributors or individuals who work for law firms that made campaign contributions.6
# 38% of the funds received by her campaign committee were contributed by attorneys who received appointments or attorneys who work for law firms that received appointments.

B. Surrogate Preminger
# Through November 9, 1997, 9% of Surrogate Preminger's appointments went to campaign contributors.
# Through November 18, 1997, 2% of the funds received by her campaign committee were contributed by attorneys who received appointments.

C. Surrogate Feinberg 7
# Through February 6, 1998, 54% of Surrogate Feinberg's appointments went to campaign contributors or individuals who work for law firms that made campaign contributions.

Press Reports

In addition to the findings of the Committee, the press has reported that Surrogates in Brooklyn and Queens have made appointments based on political connections and campaign contributions rather than merit.8 Those reports may well be erroneous in whole or in part. The number of such reports nevertheless highlights the importance of assuring that appointments are not, and do not appear to be, influenced by contributions.

III. PROPOSALS

The Committee has identified a number of possible ways to reduce the appearance and/or actuality of a quid pro quo between contributions and guardian ad litem appointments. These proposals include the following:

a. eliminating the discretion of Surrogates in making guardian ad litem appointments and instituting a blind or rotating appointment process;

b. establishing a detailed reporting system for campaign contributions and fund-raising by lawyers; and

c. strictly enforcing New York State Bar Association Ethics Opinion 289 (1973), which states that a candidate for a trial court should not knowingly accept campaign contributions from lawyers who have cases before the candidate and that no lawyer should contribute to the campaign of any candidate for a trial court before which the lawyer has a pending case.

There is always a potential conflict of interest when a lawyer contributing to a judge's campaign represents an interest before a judge.9 However, the potential for conflict is increased when the judge, and not the client, selects the lawyer who is to serve as a party's representative. This appointment power presents an opportunity for patronage. This report focuses on the potential problem inherent in the Surrogate's appointment power. A blind or rotating appointment process described below directly addresses this potential problem, but requires careful management by the Office of Court Administration to avoid inappropriate and/or inefficient appointments. The proposals regarding disclosure of campaign contributions and enforcement of the New York State Bar Association Ethics Opinion 289 (1923) will also assist in reducing the instances of real or apparent impropriety when a lawyer makes a contribution to a candidate for Surrogate.
A. BLIND OR ROTATING APPOINTMENT PROCESS

One way to prevent favoritism or unfairness and the perception of impropriety would be to establish a rotation or blind system for appointments of guardian ad litem. Under such a system, appointments would be made in rotation from the list of those eligible for such appointments.10 Surrogates are not now required to make an appointment from the list maintained by the Chief Administrator and may deviate from the list if they determine that making an appointment from the list would be inappropriate in a specific case.

However, if a blind rotation system is to be adopted for guardian ad litem appointments under which the Surrogate did not have discretion in choosing the attorneys for appointment, a mechanism must be devised to deal with the fact that not all attorneys are qualified to administer a particular estate or represent a person under disability. For example, administration of certain estates requires expertise in a particular area of law such as tax or intellectual property. Different categories of applicants would need to be designated; an impartial, reliable and accountable screening procedure to certify attorneys for appointment would have to be developed; and the quality of the representation would have to be closely monitored by the Chief Administrator.11 Under Part 36.2, the Chief Administrator already has the authority to maintain lists of applicants available for guardian ad litem appointments "differentiated by type of appointment and area of special expertise." The Committee believes that in no event should Surrogates be involved in determining who is placed on which list of attorneys eligible for appointments.

B. DISCLOSURE OF CAMPAIGN CONTRIBUTIONS AND LOANS BY LAWYERS

The public can review basic campaign finance information of candidates for Surrogate (or any other elected judicial official) through inspection of disclosure forms that must be filed with the New York City Board of Elections ("BOE"). However, because of the potential for conflicts of interest when lawyers make campaign contributions to candidates for Surrogate,12 the Committee believes that separate and more comprehensive disclosure should be filed with the Office of Court Administration ("OCA").13 The proposed rule (annexed as Exhibit B) regarding disclosure provides as follows:
# A campaign that accepts contributions from lawyers must disclose those contributions separately to the OCA. The disclosure must include the name of the contributor, the date and amount of the contribution, any prior contributions made, and the employer of the contributor.
# A campaign that receives loans from lawyers must disclose to the OCA the name of the lender, the date and amount of the loan, and prior loans or contributions made by the same contributor to the same candidate, and the employer of the lender.
# A campaign must disclose the identity of lawyers who solicit contributions on behalf of the campaign.
# Reporting periods and filing deadlines are concurrent with the periods and deadlines for filings with the BOE, as provided in New York Election Law, Sections 14-110(1)-(2), except for the two weeks immediately preceding the election, during which contributions or loans from lawyers of $500 or more must be disclosed within 24 hours.
# To establish compliance, a campaign that has not made sufficient disclosure would have to show that it made a good faith effort to obtain the required information.

Each of these provisions is discussed in greater detail below:

a. Disclosure of contributions from lawyers

State election law requires campaign committees to file with the BOE the name and address of the contributor, and the date and amount of the contribution (and the total of any previous contributions made by the contributor). N.Y. Elec. Law § 14-104. However, the forms do not elicit employer information or the occupation of the contributor. As a result, the public has no way of knowing whether a particular contributor is a lawyer or the identity of the law firm with which the contributor is affiliated. The Committee believes that the identity of the contributors, employer and occupation is an important aspect of disclosure for all contributors, but it is especially important in the case of lawyers and law firms because of the authority a Surrogate has to "reward" a lawyer (or a lawyer's firm) with an appointment and because of the possibility that a matter before the Surrogate will receive favorable treatment based on a lawyer's contribution. We note that the New York City Campaign Finance Board requires candidates participating in the City's Campaign Finance program to disclose this kind of information, and computerizes the information for easy public access.

Making this information easily accessible serves a number of important purposes. Firstly, it is a deterrent to any quid pro quo arrangement. If the press and public have easy access to contribution information, judges are more likely to adhere to the highest ethical standards. Secondly, the data that would be disclosed under the proposed Rule will help voters form an educated opinion about the candidate. Some voters may look favorably on candidates who do not accept contributions from lawyers, perceiving that that candidate would not "owe favors" to those contributing lawyers. Finally, if our recommendation for a blind appointment process is adopted, disclosure will allow for effective monitoring of compliance with the Rule.

b. Disclosure of loans

Like a contribution, a loan to a political committee that, for instance, assists the campaign in getting off to a fast start, or provides funds at a critical moment, can have the effect of giving the lender undue influence over the candidate. Moreover, a committee could receive an infusion of funds from a lawyer prior to the election and disclose it as a loan with the BOE even though the lender forgives the loan after the election, effectively making the transaction a contribution. Accordingly, without a requirement that loans be reported, the public would not be aware of an infusion of funds from a lawyer that may end up being a large contribution. The rule, of course, also provides for disclosure when the campaign pays back the loan. Loans are therefore included in the definition of "Political Contribution".

c. Disclosure of solicitors

By being responsible for the campaign receiving funds, lawyers who solicit contributions on behalf of a campaign for Surrogate can exercise undue influence over the candidate in the same way that a contributor can. Therefore, the proposed rule provides for disclosure of the name and employer of the solicitor, and the date and amount of money the lawyer solicited for the campaign, as well as any previous amounts that the lawyer solicited. This rule, also, is derived from the requirements of the New York City Campaign Finance Board for those who "bundle" (i.e., solicit and deliver) contributions.

d. When data must be disclosed

To ease the administrative burdens that will be placed on campaigns, the rule provides that the reporting periods and the deadlines for filing should be the same as under State law. N.Y. Elec. Law §14-110 subd. (1) and (2). However, the last filings before the primary and general elections cover periods that end two weeks before the election day. Eventually, data concerning subsequent contributions is required to be disclosed under State law, but not until after the election. The Committee agrees with the New York City Campaign Finance Board that it is important for voters to have access to information about contributions and loans that are received in the two weeks prior to the election. Due to the administrative burden that this disclosure may impose on campaigns, the proposed Rule requires this disclosure only for contributions and loans received of $500 or more. After election day, routine disclosure deadlines pursuant to State law resume.

e. Good faith exemption

Campaigns are required to make a good faith effort to obtain and disclose information as required by the rule. At a minimum, efforts should be made to elicit occupation information with all fund-raising mailings, calling or sending follow-up letters to contributors who have not fully disclosed such information. Campaigns are advised to keep records evidencing these efforts.

C. STRICT ADHERENCE TO AND ENFORCEMENT OF ETHICS OPINION NYS 289 (1973)

New York State Bar Association Ethics Opinion 289 (1973) establishes campaign guidelines for judicial candidates. The guidelines state that a candidate for a trial court should not knowingly accept contributions from lawyers who have cases before the candidate and that no lawyer should contribute to the campaign of a candidate for a trial court before whom the lawyer has a pending case. The relevant text is excerpted below:

3. Solicitation of Lawyers. Contributions may be solicited and accepted from lawyers (including lawyers having cases before, or which may come before, the candidate), provided that the solicitation makes no reference, direct or indirect, to any particular pending or potential litigation. Because lawyers may be "better able than laymen to appraise accurately the qualifications of candidates for judicial office", it would not be appropriate, given the safeguards (nondisclosure of the donors' identity and limitation on amount of contribution) contained in the following guidelines, to prohibit solicitation of lawyers who may appear before the candidate. However, contributions should not knowingly be accepted on behalf of a candidate for a trial court from lawyers who then have cases before the candidate. Moreover, no lawyer should contribute to the campaign of a candidate for a trial court before whom the lawyer has a pending case.14 (emphasis added)

This Bar Association's Uniform Judicial Questionnaire asks judicial candidates if they have adhered to these guidelines: "Do you subscribe, and have you adhered, to the campaign guidelines established for judicial candidates by the New York State Bar Association (Published in the New York State Bar Association Journal; Committee on Professional Ethics Opinion No. 289, dated April 27, 1973)? The questionnaire adds: "If you answered this question in the negative, please explain."

The Committee is of the view that because many cases in Surrogate's Court are uncontested and involve purely administrative matters, the term "pending case" as used in the opinion as applied to a campaign for Surrogate should be interpreted to mean a contested matter or a matter which the attorney reasonably believes will be contested. The guidelines could be enforced by requiring candidates to return any contribution that is not accompanied by a form on which the donor has checked off a declaration that they have complied with NYS 289 (1973).

If compliance with NYS 289 (1973) were monitored closely and the guidelines were strictly enforced, it would reduce the appearance or actuality of conflicts of interest in the Surrogate's Court.

IV. THE POWER OF THE NEW YORK STATE ADMINISTRATIVE BOARD TO ADOPT THE PROPOSED RULE

The New York State Administrative Board of the Courts has the power to adopt the proposed Rule regarding disclosure of campaign contributions, annexed as Exhibit B.

Illustrative of the New York State Administrative Board's ability to reach the conduct of attorneys outside of the courtroom is the manner in which new standards of conduct were enacted regarding the practice of law by matrimonial lawyers. The Chief Administrative Judge of the Courts adopted a new Part 136 of the Rules of the Chief Administrator relating to mandatory "Fee Arbitration in Matrimonial Cases" upon consultation with and approval of the Administrative Board of the Courts. The adopted provisions gave clients in matrimonial actions a right to arbitrate fee disputes under the Rule's framework. Although these provisions regulated out of court conduct, their impact on the ethical standards and the public perception of the profession clearly justified regulation by the New York State Administrative Board of the Courts. Similarly, regulation of the manner in which lawyers and their firms contribute and solicit political contributions while simultaneously seeking appointments from those officials raises equally important issues of proper conduct and public perception which justify promulgation of the proposed rule by the Administrative Board.

Complementary authority to address the proposed rule also rests in the hands of the Appellate Divisions pursuant to § 90(2) of the New York Judiciary Law. A court rule incorporating the proposal would bring the proscribed conduct within the definition of "professional misconduct" that forms a basis for discipline under § 90(2).

CONCLUSION

The Committee believes that these proposals would reduce the appearance and/or actuality of a quid pro quo between contributions and guardian ad litem appointments.

In a different but somewhat related context, this Committee has recommended a two-year ban on acceptance of public finance-related legal work by lawyers who make contributions to public officers or candidates for public offices who retain lawyers for such work. We have considered applying this approach, by means of a ban of some duration on acceptance of guardianships ad litem by lawyers who have contributed more than a de minimis sum to the campaign of the Surrogate making the appointment.

The Committee has concluded that if the reforms proposed by this report are adopted, such a ban should not be necessary. It may be appropriate to consider such a ban if the reforms we have proposed in this report are not adopted, or are adopted but prove insufficient. The appearance of "pay-to-play" by lawyers in making campaign contributions is extremely harmful to the integrity of the profession, whether it is done to secure public finance engagements or guardianships ad litem. We believe that the reforms proposed by this report are tailored to the Surrogate's Court issues and urge their adoption.

COMMITTEE ON GOVERNMENT ETHICS

Joel Berger, Chair

Christopher D. Berner
Susan B. Braver
Ivo G. Caytas
Patricia J. Clarke*
Robert Conrad
Hon. George B. Daniels
William A. Delano
Peter M. Dwoskin
Laurel W. Eisner
Francis M. Fryscak
Leo Glickman*
Marcia J. Goffin+
Frank P. Grad
Jeff G. Hammel
William Josephson
Peter J. Kiernan
Paul J. Lightfoot
Eileen D. Millett
Gideon A. Moor
Richard Rifkin
Robert Rodriguez
Gene Russianoff
Kirsten E. Rutnik
Edward C. Wallace

* Subcommittee
+ Abstains

Footnotes

1: Surrogate Roth is currently in her second term. Her previous term ran from January 1983 through December 1996.

2: The Committee did not examine contributions to the campaigns and appointment practices of Queens County Surrogate Robert Nahman, Bronx County Surrogate Lee L. Holzman or Richmond County Surrogate Charles J. D'Arrigo.

3: In determining the amount of the guardian ad litem's compensation, several factors are relevant, including the resultant benefit to the estate, time expended, character of the service, complexity of the case and size of the estate. The method of fixing the fee is considered to be similar to the method for fixing counsel fees.

4: Surrogate Preminger has promulgated procedures for appointment of fiduciaries, including guardians ad litem, that call for appointments to be made on a rotating basis from a list she maintains. All attorneys who wish to be appointed as guardians ad litem in matters before Surrogate Preminger must submit an application for appointment. In order to be eligible for appointment an attorney must: 1) be on the list maintained by the Chief Administrator; and 2) agree to accept pro bono assignments relating to Surrogate's Court matters. According to Surrogate Preminger's written procedures, when a matter requires designation of a guardian ad litem, Surrogate Preminger selects an attorney from the first ten names in the rotation. In determining which attorney to select, Surrogate Preminger's procedures indicate that she will consider the requirements of the appointment, the attorney's experience and qualifications, and the nature of the attorney's prior appointments (if any). Attorneys designated for appointments (other than pro bono appointments) are then moved to the end of the rotation. The Committee has not endeavored to study the operation of this system in practice, including the quality of the resulting appointments.

5: Surrogate Preminger's campaign committee raised $599,589, of which $463,310 was provided by the candidate herself.

6: The analysis does not include contributions made by those who are closely associated with the appointee, e.g., other members of the law firm with which the appointee is affiliated and immediate family members of the appointee. If the Committee were able to identify these relationships and include contributions from those closely associated with an appointee, the percentage might well be much higher. The unavailability of such information underscores the need for more detailed reporting, as we recommend below.

7: As noted on page 4, because of the relatively short period of time that Surrogate Feinberg has been on the bench, there is insufficient data as to the percentage of total fund-raising attributable to lawyers appointed as guardians ad litem by the Surrogate.

8: Maggie Haberman, Jack Newfield, and Allen Salkin, Queens Court Doles Legal Business to Dem Insiders, NEW YORK POST, February 16, 1998; Maggie Haberman, Jack Newfield, Allen Salkin and Anne Adams Lang, Kings County Princes, NEW YORK POST, November 9, 1997; Maggie Haberman, Jack Newfield, and Allen Salkin, Here's Who Gets Pick of Judge's Patronage Plums, NEW YORK POST, November 9, 1997; and Maggie Haberman, Jack Newfield, and Allen Salkin, "Reform" is in Hands of Old-Machine Pol, NEW YORK POST, November 10, 1997.

9: In addition to appointing a contributor as guardian ad litem, other forms of favorable treatment could include awarding higher compensation for the appointment, moving a case more expeditiously or making advantageous procedural rulings.

10: See proposed rule annexed as Exhibit A.

11: While the criminal courts Assigned Counsel Plan might arguably serve as a possible model for such a system, there are some distinguishing factors and the quality of representation afforded by 18-B assigned counsel has been criticized from time to time. Article 18-B of the County Law requires each County to establish a program to furnish representation for indigent defendants in criminal proceedings. This program, known as the Assigned Counsel Plan, includes standards for the selection, designation, performance and professional conduct of individual panel plan attorneys.

In the First Department, there are five different Panels:

Trial Court Panel
Felony Panel
Homicide Panel
Parole Revocation Panel
Appeals Panel

In the Appellate Division, Second Judicial Department, a Central Screening Committee maintained by the county bar associations reviews the applications and recommends qualified attorneys to be added to the Panels. The recommendations are forwarded to the Administrator for review and approval. The Appellate Division then designates the panels from attorneys recommended by the Screening Committee and the Administrator.

An Advisory Committee establishes eligibility requirements for selection to each panel. All members of 18-B panels must complete an extensive application and questionnaire about their history, experience and proficiency in criminal law. Requirements include references from colleagues, adversaries, and (for appellate work) judges.

All assignments must be made from the panel list in the order of the next available attorney on the list. The Administrator is required to maintain records to monitor compliance with this requirement.

12: Although this report focuses on judicial candidates for Surrogate, the Committee believes that the proposed disclosure requirements would be appropriate for all candidates for judicial office.

13: This recommendation does not contemplate requiring the OCA to enforce compliance with the disclosure rule. We anticipate that the potential for review by the press and a candidate's opponent should assure compliance with the disclosure rule. If it does not, sterner measures may be necessary.

14: The guidelines provide that "a lawyer should not be considered to be involved in litigation pending before a judge if his firm is so involved but he has not personally participated and does not expect to participate personally in the litigation in any material way."

Exhibit A

Parts 36 of the Rules of the Chief Judge should be amended to read as follows:

Text that is underlined should be added to the rules
[Text that is in brackets should be deleted from the rules]

§ 36.1 Appointments

(a) All appointments of guardians, guardians ad litem, court evaluators, attorneys for alleged incapacitated persons (under Article 81 of the Mental Hygiene Law), receivers, persons designated to perform services for a receiver 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 [may] shall select as the appointee the next available applicant from the list of applicants established by the Chief Administrator of the courts pursuant to section 36.2(a) of this Part.

§ 36.2 Lists of Available Applicants

(a) The Chief Administrator of the Courts shall provide for the application by persons and institutions seeking appointment as guardians, guardians ad litem, court evaluators, attorneys for alleged incapacitated person, receivers, persons designated to perform services for the receiver, and referees. The Chief Administrator shall assemble such applications and shall maintain and make available for use by the appointing judge lists of applicants for appointment.

(b) The lists maintained by the Chief Administrator shall contain such information as will enable the appointing judge to be apprised of the background of the applicants set forth therein. The lists may be maintained by court, county, judicial district, judicial department or combination thereof, and [may] shall be differentiated by type of appointment and area of special expertise.

Exhibit B

The Chief Administrative Judge of the Courts, upon consultation with and approval of the Administrative Board of the courts, adopts the following Rule applicable to candidates who run for the office of Surrogate.

. 1. Purpose and Intent

The purpose and intent of this Rule is to ensure that high standards of professional integrity are maintained, to assist in preventing the appearance and/or the actuality of corrupt practices being exercised by Surrogate by promoting easy access to certain campaign finance information, and to provide information that will assist the voting public in forming an educated opinion about the potential conflicts of interest that are created when a candidate for Surrogate receives Political Contributions from lawyers, law firms and political action committees controlled by lawyers and law firms.

. 2. Definitions

"Political Contribution" shall mean any gift, subscription, loan, advance, or deposit of money made, directly or indirectly, to a candidate for Surrogate.

"Political Solicitation" shall mean a solicitation directed to any person or entity resulting in a Political Contribution to a candidate for Surrogate.

. 3. Disclosure of contributions and loans made to, and solicitations made on behalf of, campaigns for Surrogate's Court judge by lawyers

(a) Public disclosure of all Political Contributions made to, and Political Solicitations made on behalf of, political committees of campaigns for Surrogate by lawyers, law firms and political action committees controlled by law firms or lawyers must be made to the Office of Court Administration in a complete and timely manner, as described in § 3(b) and (c) below.

(b) Contents of the public disclosure

(i) Political contributions received from individual lawyers. For each political contribution received from a lawyer, the lawyer's complete name, residential address and employer, and the amount and the date the political contribution was received must be disclosed.

(ii) Political contribution received from law firms. For each political contribution received from a law firm, the law firm's complete name and address, and the amount and the date the political contribution was received must be disclosed.

(iii) Political Contributions received from political action committees controlled by law firms or lawyers. For each political contribution received from a political action committee, the committee's full name and address, the complete name and address of the law firm or lawyer that controls the committee, and the amount and the date the political contribution was received must be disclosed.

(iv) Political Solicitations made on behalf of the campaign. The same information about solicitors must be disclosed as if the solicitor was a contributor except that the amount and date of each political solicitation shall not be separately detailed. Rather, the amount the solicitor obtained through solicitations during a particular reporting period shall be aggregated and disclosed as one sum.

(v) Returned Political Contributions. Except under the circumstances described in § 3(b)(vi), when a campaign returns a political contribution, it shall disclose the complete name and address of the contributor, the date the political contribution was returned, and the amount being returned. in the case of a lawyer's political contribution being returned, the lawyer's employer shall also be disclosed.

(vi) Exception to reporting a political contribution or political solicitation. If a campaign returns a Political Contribution because the contributor or solicitor who solicited the Political Contribution is a lawyer, law firm, or political action committee controlled by a lawyer or law firm within five business days of ascertaining this information, the political contribution or political solicitation need not be separately disclosed to the Office of Court Administration.

(vii) Good faith exemption from liability. Campaigns must make a good faith effort to disclose all the information required by this Rule. A campaign that fails to disclose the information required by this Rule will not be liable under the Rule if it makes a good faith effort to obtain and disclose the information. Good faith may be demonstrated by requesting the required information on contribution cards, in mailings, or by telephone. Campaigns should keep records evidencing their good faith efforts.

(c) Filing dates and reporting periods.

(i) Filing dates. The public disclosure described in § 3(b) above must be made by the same dates for campaign finance public disclosure as required by N.Y. Elec. Law § 14-108 subd. (1) and (2).

(ii) Reporting periods. Except as provided in § 3(c)(iii), all reporting periods for this Rule shall be concurrent with campaign finance public disclosure reporting periods as provided in N.Y. Elec. Law § 14-108.

(iii) Special pre-election public disclosure. Public disclosure of contributions and loans of $500 or greater, and solicitations that lead to contributions of $500 or greater, must be made on a daily basis during the 14 days prior to each election for which the candidate is on the ballot. The disclosure must be received by the Office of Court Administration within 24 hours of the contribution, loan or solicitation being made. All other contributions, loans and solicitations must be disclosed by the first deadline after the election as described in N.Y. Elec. Law § 14-110 subd. (1). During these 14 days, if a campaign receives multiple contributions from a single source aggregating $500 or more, then the contribution that causes the total to equal or exceed $500 must be disclosed, and the previous amount contributed during these 14 days must be disclosed. Thereafter, all subsequent contributions from that single source must be disclosed pursuant to this provision.

Application

This Rule shall apply to any Political Contribution made to or Political Solicitation made on behalf of a campaign for Surrogate on or after ____________, 1998.