Opinion 06-64

June 9, 2006

Please Note: This opinion has been modified in several respects.  First, Opinion 09-88 advises that a part-time judge may volunteer as a mediator for a program that charges no fee for mediation services, even if the judges court may refer cases for mediation.  Second, Opinion 13-121 modifies this opinion to the extent it requires disqualification in any case where the parties to an arbitration/mediation in which the judge presided subsequently appear before the judge; disqualification is required only in related cases. Third, we note that Rule 835.3(c) no longer contains the following sentence: "A law guardian who serves as a judge or justice of a city, town or village court, or law clerk to a judge or justice, shall not be assigned or accept assignment as a law guardian in the county where the court is located in any type of proceeding over which that court could exercise jurisdiction."

Digest:         A recently elected part-time judge (1) may serve as a mediator with an agency unless the judge’s court has jurisdiction to refer cases to that agency; (2) may serve as a trustee of a local library that is organized as a private not-for-profit corporation, provided the position is not filled pursuant to a general election in which all voters in the municipality are entitled to vote; and (3) may, subject to certain limitations, serve as private or assigned counsel for clients involved in Family Court proceedings.

Rules:          Family Court Act §243; County Law Article 18-B; 22 NYCRR Part 36; 100.2; 100.3(E),(F); 100.4(A);(C)(3);(F); 100.6(B); 100.6(B)(1); 835.3(c); Joint Opinion 05-51/05-58; Opinions 02-86; 02-61; 01-42 (Vol. XX); 99-97 (Vol. XVIII); 93-13 (Vol. XI); 91-03 (Vol. VII).

Opinion:

         A recently-elected part-time judge asks whether the following extra-judicial activities are ethically permissible: (1) setting up and participating in a program of parent/child mediation through a municipality’s Youth Program with assistance from a county dispute resolution center; (2) volunteering to mediate custody/visitation disputes referred by a Family Court to a county dispute resolution center; (3) serving on the board of trustees of a municipal library; and (4) representing clients, including children, either privately or as assigned counsel, in the Family Court.

         Pursuant to the Rules Governing Judicial Conduct, a judge must avoid impropriety and the appearance of impropriety in all of the judge’s activities. 22 NYCRR 100.2. A judge may engage in extra-judicial activities that do not: (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; (3) interfere with the proper performance of judicial duties and are not incompatible with judicial office. 22 NYCRR 100.4(A).

         While full-time judges are specifically prohibited from serving as arbitrators or mediators (22 NYCRR 100.4(F)), as a general rule, part-time judges are permitted to do so (22 NYCRR 100.6(B)(1)). One limitation on such service is where the judge’s court has the authority to refer cases to that agency. But that does not appear to be the situation in the matter before us. Thus, the judge may serve in that capacity. See Opinions 93-13 (Vol. XI); 91-03 (Vol. VII). Assuming the judge does serve as a mediator, he/she must exercise recusal in any case where the parties to a mediation subsequently appear before the judge in court. 22 NYCRR 100.3(E)(1). Such recusal is, however, subject to remittal. 22 NYCRR 100.3(F). Should the judge’s service as a mediator result in frequent recusal, or involve the judge in on-going controversies and litigation, the judge cannot continue to serve in that capacity.

         With respect to serving on a municipal library’s board of trustees, a judge may serve as a trustee of a not-for-profit educational, religious or civic organization. 22 NYCRR 100.4(C)(3). This Committee has previously advised that a judge may serve as a trustee of a local library that is organized as a private not-for-profit corporation. Opinion 01-42 (Vol. XX). Serving as a trustee of a local library is not permissible, however, if the position is filled pursuant to a general election in which all voters in the municipality are entitled to vote. Opinion 02-86.

         Finally, a part-time lawyer judge is permitted to practice law, but not in the judge’s own court, and not before a judge who is permitted to practice law and presides in any other court in the county in which the judge’s court is located. 22 NYCRR 100.6(B). Law Guardian appointments are subject to Part 36 of the Rules of the Chief Judge, which governs fiduciary appointments by the courts, and generally prohibits the appointment of judges to a number of court-appointed positions. Part 36, however, does not apply to “appointments of law guardians pursuant to section 243 of the Family Court.” Joint Opinion 05-51/05-58.

         In addition, section 835.3(c) of the Rules of the Third Department states, in part:

. . . Law guardians serving in the following positions or employed by any of the following offices shall not be assigned to serve as a law guardian in those types of proceedings in which, by virtue of such position or employment, they have either similar or equivalent subject matter jurisdiction or responsibilities or, in the county in which they are employed, the office by which they are employed participates as a party: judge or justice of a city, town or village court, law clerk to a judge or justice, district attorney, county attorney, or municipal corporation counsel. 22 NYCRR 835.3(c).

         In Joint Opinion 05-51/05-58, this Committee advised that:

The Third Department rule does not appear to be an absolute bar to the appointment of part-time justices as law guardians. The Committee is unable, however, to advise the inquiring justices of all circumstances that preclude assignment. Whether a law guardian is precluded from a particular assignment by reason of the Third Department rule, is thus for determination to be made by the assigning judge on a case by case basis.

         A part-time lawyer justice also can be retained by parties in Family Court and Supreme Court proceedings to serve as a law guardian. Opinion 02-61. And, subject to the restrictions set forth in section 100.6(B) of the Rules Governing Judicial Conduct, a part-time lawyer justice may accept Article 18-B assignments. Opinion 99-97 (Vol. XVIII).