Opinion 07-13

January 25, 2007

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 (JHO) may not serve as a private arbitrator in a pending action commenced in the court where he/she has been designated to serve as JHO.

Rules:          Judiciary Law, Art. 22; 22 NYCRR 100.1; 100.2; ; 100.3(E)(1); 100.4(A)(3); 100.6(A); 122.11; Opinions 06-84; 05-29; 03-07; 01-109 (Vol. XX); 01-19 (Vol. XIX); 00-117; 95-66 (Vol. XIII); 95-64 (Vol. XIII); 94-44 (Vol. XII).

Opinion:

         A Judicial Hearing Officer (JHO) who serves, pursuant to Judiciary Law Article 22, in the Supreme Court in a particular county, asks whether he/she may also serve as a private arbitrator in a contested Supreme Court action in that county. The inquiring JHO states that if the matter is not resolved during the arbitration, he/she will disqualify him/herself from presiding as a JHO over those proceedings in Supreme Court.

         Section 100.6(A) of the Rules Governing Judicial Conduct (“the Rules”) provides that JHOs are bound by the Rules in the performance of their judicial duties, “and otherwise shall, so far as practical and appropriate, use such rules as guides to their conduct.” 22 NYCRR 100.6(A). These mandates include avoiding impropriety and the appearance of impropriety, and conducting extra-judicial activities in such a manner as to minimize the risk of conflict with their quasi-judicial responsibilities. 22 NYCRR 100.1; 100.2; 100.4(A)(3); 100.6(A); Opinions 05-29; 03-07; 01-109 (Vol. XX); 00-117; 95-66 (Vol. XIII); 95-64 (Vol. XIII); 94-44 (Vol. XII).

         This Committee previously determined that a JHO may serve as an arbitrator or mediator, even for pending cases, in counties where he/she is not designated to serve as JHO. Opinion 01-19 (Vol. XIX). The Committee has further determined that a JHO may serve as a private mediator in actions not yet commenced, in a court in which the JHO has been designated to serve, and that the JHO shall be disqualified from serving as a JHO if any action is thereafter commenced. Opinion 06-84.

         In the instant inquiry, however, because the action has commenced and is pending in a court where the inquiring JHO has been designated to serve as JHO, it is the Committee’s opinion that the inquiring JHO should not serve as a private arbitrator in the action. 22 NYCRR 100.3(E)(1); 122.11; Opinions 06-84; 01-19 (Vol. XIX).

         The JHO’s intention to disqualify him/herself should the now-pending action later be referred to the JHO does not remedy the evident appearance of impropriety or the risk of conflict. 22 NYCRR 100.1; 100.2; 100.4(A)(3); 100.6(A).