Opinion 01-19

March 8, 2001

Please Note: Section 122.10(c) was amended in 2019. The section now reads as follows: “A judicial hearing officer shall not participate as an attorney or, unless appointed by the court on terms including receipt of compensation pursuant to section 122.8 of this Part, as a referee, mediator, or arbitrator, or similar officer, in any contested matter in a court in a county where he or she serves on a judicial hearing officer panel for such court.” 

Digest:         A Judicial Hearing Officer who practices law, may offer his or her services to attorneys as an arbitrator or mediator.

Rule:           22 NYCRR 36.1(b)(2); 122.5(a);

                   122.10(c); 100.6(A); CPLR 4301

Opinion:

         A retired judge, who practices law and serves as a Judicial Hearing Officer, inquires whether it is permissible to write to attorneys stating that he/she would be available to act as a mediator or arbitrator in cases pending in counties in which his/her name does not appear on a panel of Judicial Hearing Officers.

         Part 122 of the Rules of the Chief Administrator of the Courts provides that a former judge of the Unified Court System can be appointed as a Judicial Hearing Officer by the Chief Administrator, and assigned to panels of Judicial Hearing Officers for particular courts in individual counties. 22 NYCRR 122.5(a). From such panels, a Judicial Hearing Officer may be assigned to preside in a particular action or proceeding by the appropriate administrative judge. 22 NYCRR 122.5(a). A Judicial Hearing Officer so assigned possesses all the powers of a referee to hear and determine. CPLR 4301.

         Former judges who have been appointed as Judicial Hearing Officers may also practice law, but may not participate as an attorney in any contested matter in a court in a county where he or she has been named to a Judicial Hearing Officer panel for such court. 22 NYCRR 122.10(c). Moreover, Rule 36.1 (b)(2) of the Rules of the Chief Judge states that "[n]o 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 for such court."

         Simply stated, a former judge who has been appointed as a Judicial Hearing Officer can practice law in any county, subject to certain limitations: (1) he or she cannot participate as an attorney in any contested matter pending in a court and county in which he or she has been named to serve on a Judicial Hearing Officer panel for such court; (2) he or she cannot be appointed as a referee in any matter in which he or she could be appointed as a Judicial Hearing Officer. Since a mediator or arbitrator is selected by stipulation of the parties, not by appointment by a court or judge, and since a lawyer who acts as a mediator or arbitrator in proceeding is not participating as an attorney for any party to the litigation, it is the Committee's opinion that neither of the limitations adopted by the Chief Administrator and discussed herein would be applicable. Accordingly, the inquiring Judicial Hearing Officer may, within the constraints of the Code of Professional Responsibility concerning solicitation, publicize his or her availability to act as a mediator or arbitrator in the manner suggested.