Opinion 07-12

September 6, 2007

Digest:         A Supreme Court Justice may serve as a volunteer arbitrator in the Small Claims Part of New York City Civil Court, unless he/she also serves on a court that hears appeals from such Court.

Rules:          N.Y. City Civil Court Act § 1701; 22 NYCRR 100.4(F); 630.1; 730.1(b)(1); Opinions 99-103 (Vol. XVIII); 89-33 (Vol. III).

Opinion:

         A Supreme Court Justice asks if he/she may serve as a volunteer arbitrator in the Small Claims Part of the New York City Civil Court after his/her normal working hours.

         Section 100.4(F) of the Rules Governing Judicial Conduct provides 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 Opinion 99-103 (Vol. XVIII), this Committee opined that a Family Court Hearing Examiner, otherwise subject to the Rules Governing Judicial Conduct, may serve as a volunteer Small Claims Court arbitrator, as such service would not be performed in a “private capacity.”

         Similarly, in Opinion 89-33 (Vol. III), this Committee advised that nothing in the Rules prohibits a Supreme Court Justice’s law clerk from serving as a volunteer arbitrator in Small Claims Court. The Committee noted that the law clerk’s duties normally are sufficiently attenuated from proceedings in Small Claims Court so as to prevent a direct conflict between the two positions. Id.

         In the present inquiry, the fact that the judge would not be serving as a Small Claims arbitrator in a private capacity is not dispositive. The question remains as to whether there is any risk of conflict with the inquiring judge’s judicial duties.

         The Appellate Terms of the First and Second Departments hear appeals from decisions of the New York City Civil Court, of which Small Claims Court is a part. N.Y. City Civil Court Act § 1701; 22 NYCRR 630.1; 730.1(b)(1). If the inquiring judge presides in an Appellate Term that hears appeals of decisions by volunteer arbitrators in the New York City Civil Court, his/her role as a Small Claims arbitrator would conflict with his/her judicial duties.

         Absent any such conflict, the inquirer may serve as a volunteer arbitrator for the New York City Civil Court.