Opinion 09-88

September 10, 2009

Please Note:  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.

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         A part-time town justice may volunteer as a mediator for a mediation program the Unified Court System funds, as the program charges no fee for its services.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(E)(1); 100.3(F); 100.4(A); 100.4(A)(3); 100.4(F); 100.6(B)(1); 100.6(B)(4); Opinions 07-12; 06-64; 98-41 (Vol. XVI); 93-13 (Vol. X); 92-69 (Vol. IX); 91-04 (Vol. VII); 91-03 (Vol. VII); 90-12 (Vol. V); 89-150 (Vol. V); Joint Opinion 07-114/07-120.

Opinion:

          A part-time town justice asks whether he/she may serve as a mediator outside of his/her town, without compensation, as part of a free mediation program that the Unified Court System funds. The judge notes that he/she sometimes refers parties to this program in small claims matters. The judge also states that when a representative from the court-sponsored mediation program is present in the courtroom, he/she advises the parties that free mediation services are available if they would like help settling their dispute.

         A judge must avoid impropriety and the appearance of impropriety in all of the judge’s activities (see 22 NYCRR 100.2), must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]) and must not lend the prestige of judicial office to advance the private interest of another (see 22 NYCRR 100.2[C]). 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; or (3) interfere with the proper performance of judicial duties and are not incompatible with judicial office (see 22 NYCRR 100.4[A]; 100.6[B][4]). While full-time judges are specifically prohibited from acting as arbitrators or mediators “in a private capacity” (22 NYCRR 100.4[F]), part-time judges are generally permitted to do so (see 22 NYCRR 100.6[B][1]; Opinions 06-64; 93-13 [Vol. X]; 92-69 [Vol. IX]; 91-04 [Vol. VII]; 91-03 [Vol. VII]; but see Opinion 07-12 [full-time judge may serve as volunteer arbitrator in Small Claims Part of New York City Civil Court because such service would not be performed in a “private capacity”]).

         The Committee previously has advised that a judge should not conduct arbitration or mediation for an agency to which the judge’s court has the authority to refer cases (see Opinions 06-64; 93-13 [Vol. X]; 91-03 [Vol. VII]; 90-12 [Vol. V]), unless “the judge receives no compensation for [his/her] services ... and the [agency] charges no fee for its services” (90-12 [Vol. V]; accord Opinions 91-03 [Vol. VII]). Because the judge in the present inquiry would volunteer for a free, court-sponsored mediation program to which he/she can and does make referrals, because the parties do not have to pay a fee for the service and because the judge will not be compensated for his/her services as a mediator, the judge may volunteer his/her services as a mediator for a free mediation program that is funded by the Unified Court System (id.). However, if the judge does so, he/she should not refer cases for mediation exclusively to the same program but, instead, should advise the parties before the court of all the mediation options available to them (see 22 NYCRR 100.2[C]).

         However, the judge may not serve as a mediator in cases pending before any judge in his/her court, as this could create an appearance of impropriety or conflict with his/her judicial duties (see 22 NYCRR 100.2; 100.4[A][3]; Opinions 07-12 [duties of Small Claims arbitrator would conflict with judicial duties if judge presides in an Appellate Term that hears appeals of decisions by volunteer Small Claims arbitrators); 98-41 [Vol. XVI] [town justice may preside as an arbitrator/hearing officer in a disciplinary hearing against a village police officer of a village located outside of the town in which the judge presides]). Of course the justice may, in his/her judicial capacity, continue to hold settlement conferences in civil matters, even if this is a functional equivalent of mediation (see Opinion 89-150 [Vol. V]).

          Also, the judge must disqualify him/herself in any case where the parties to a mediation subsequently appear before the judge (see Opinion 06-64; 22 NYCRR 100.3[E][1]). However, such disqualification is subject to remittal unless a party appears without counsel (see Joint Opinion 07-114/07-120 22; NYCRR 100.3[F]). But, if the judge must disqualify him/herself so frequently that service as a volunteer mediator interferes with his/her performance of judicial duties, or involves the judge in ongoing controversies and litigation, the judge must not continue to serve as a volunteer mediator (see 22 NYCRR 100.4[A] [3]; Opinion 06-64).

         This Opinion modifies prior Opinions 91-03 (Vol. VII); 93-13 (Vol. XI) and 06-64 to the extent that they advise that a judge may not volunteer as a mediator for a program that charges no fee for mediation services and to which the judge’s court may refer cases for mediation.