Opinion 04-21

March 11, 2004

Digest:         Under the circumstances described, the inquiring full-time judge should not continue to serve on the bar association attorney grievance committee on which he/she was serving prior to becoming a judge.

Rules:          22 NYCRR 100.4(A)(3); 100.4(F); 691.4. Opinions 92-123 (Vol. X); 95-49 (Vol. XIII); 96-76 (Vol. XIV); 00-15 (Vol. XVIII).

Opinion:

         The inquirer is a recently-elected full-time judge who asks whether he/she may serve on the attorney grievance committee of a county bar association. The judge had been serving on the committee prior to his/her election to judicial office and now wishes to know whether it is permissible to continue with such service.

         As explained by the judge, the bar association grievance committee in question has matters referred to it for its review by the attorney Grievance Committee established pursuant to rule by the Appellate Division, Second Department. The Grievance Committee of the Appellate Division is “charged with the duty and power to investigate and prosecute matters arising in or concerning attorneys practicing, or currently residing or having resided in the judicial district involved.” 22 NYCRR 691.4.

         The bar association committee’s role in that process is described by the judge as follows:

                   The review process is two-fold. First, three members of the

                   committee receive packets for their review. Each member

                   reviews the materials to determine whether the matter

                   should be dismissed, set down for a hearing, or referred to

                   a separate committee for fee dispute resolution. If two of

                   the three members recommend a hearing, then a new panel

                   of three members is selected to preside over the hearing.

                   At the end of the hearing there are various outcomes ranging

                   from dismissal, to letters of caution, to referral back to the

                   Grievance Committee for the Appellate Division, Second

                   Department. The Committee does not engage in any type

                   of mediation or dispute resolution. If any mediation is

                   appropriate it is done by a separate committee, e.g., the fee

                   dispute resolution committee.

         As pointed out by the inquirer, the Advisory Committee has previously stated that part-time judges may serve on attorney grievance committees. See, Opinions 95-49 (Vol. XIII), 00-15 (Vol. XVIII). Thus, the question is whether a different result is required with respect to full-time judges.

         The answer is provided by section 100.4(F) of the Rules Governing Judicial Conduct which states that “a full-time judge shall not act as an arbitrator or mediator or otherwise perform judicial functions in a private capacity unless expressly authorized by law. 22 NYCRR 100.4(F).(Emphasis added). In our opinion, the function of passing upon and making recommendations concerning allegations of attorney misconduct, which function includes serving on panels that hold hearings constitutes the performance of a judicial function. While it is true that the bar association panels do not hold the ultimate authority in determining whether there are to be formal charges, they do apparently wield significant authority in determining that there should be a hearing, or a dismissal, or a letter of caution. Reaching such conclusions, in our view, is as much a judicial function as would be the conclusion that a particular matter warrants further action by the Appellate Division’s Grievance Committee.

         Here, the judge is performing that function in a private capacity, i.e. not as a judge of the Unified Court System, but as a member and designee of a bar association, and thus is in no different position from a judge who serves as a hearing officer or member of a church court in a church related disciplinary matter. See, Opinions 96-76 (Vol. XIV), 92-123 (Vol. X). In such instances, we have concluded that the full-time judge is engaging in private judging, and thus falls within the proscription of section 100.4(F) of the Rules Governing Judicial Conduct.

         We therefore conclude that engaging in the extra-judicial activity of serving as a member of this particular county bar association attorney grievance committee, under the circumstances described, is incompatible with the holding of full-time judicial office, and the judge should not remain a member of the committee. 22 NYCRR 100.4(A)(3); 100.4(F).