Opinion 07-76

June 7, 2007

Digest:         A Judicial Hearing Officer (JHO) may continue to serve in county-wide courts, in the counties adjacent to the county where he/she is employed as Special Counsel to a city legislature, but is not permitted to appear as an attorney in any court in the county where he or she serves on a judicial hearing officer panel.

Rules:          22 NYCRR 100.6(A); Part 122; 122.10; Opinions 05-29; 01-09 (Vol. XX); 00-117 (Vol. XIX); 89-63 (Vol. III).

Opinion:

         A former judge now serving as a Judicial Hearing Officer (JHO) has been offered employment as Special Legal Counsel (Special Counsel) to a city legislature in a city within the JHO’s county of residence. The JHO represents that he/she does not preside as a JHO in the county of residence, but does serve in county-wide courts in two counties adjoining that county. The inquirer asks if there are any restrictions on his/her acceptance of employment as Special Counsel to the city legislature.

         This Committee has determined that a JHO, as a quasi-judicial official, is generally subject to the same ethics rules as a judge. 22 NYCRR 100.6(A); Opinions 05-29; 01-09 (Vol. XX); 00-117 (Vol. XIX). Restrictions on the practice of law by a JHO, however, are specifically detailed in the Rules of the Chief Administrator of the Courts Governing Judicial Hearing Officers. 22 NYCRR Part 122. Thus, a JHO is fully permitted to practice law, except to the extent such practice is limited by section 122.10 of the Rules. 22 NYCRR 122.10; Opinion 89-63 (Vol. III).

         Rule 122.10(c) specifically states that a JHO may not participate as an attorney in any contested matter in any court within the county where he or she serves on a judicial hearing officer panel for such court. 22 NYCRR 122.10(c) (emphasis added); Opinion 89-63 (Vol. III). There are therefore no restrictions on the JHO continuing to serve as a JHO in those county-wide courts in the adjoining counties. If the inquirer is authorized to serve as a JHO in any courts in the county where he/she serves as Special Counsel (which is also his/her county of residence), however, even if no appointments to serve as a JHO in that county are pending, expected, or forthcoming, the JHO may not appear as Special Counsel in any such court(s). Opinion 00-117 (Vol. XIX). In that circumstance, the inquirer should consider resigning from the JHO panel for any such court(s), or, in the alternative, decline employment as Special Counsel.