Opinion 12-123

September 13, 2012

Please Note: Opinion 20-79 fn 1 recognizes that Opinion 12-123 was effectively modified in 2019 by a rule change: “Significantly, the 2019 amendment to Section 122.10(c) effectively modifies Opinion 12-123 with respect to compensation. Although a JHO in a particular court may still accept an appointment as a special referee to supervise discovery in a matter pending in the same court, his/her compensation is now limited by Section 122.8 (see 22 NYCRR 122.10[c]).”

Digest:         Unless prohibited by law, a former judge who is designated as a judicial hearing officer in a particular court may also accept an appointment as a special referee to supervise discovery in a matter pending in the same court and may accept compensation for the fair value of services rendered.

Rules:          22 NYCRR Part 36; 36.1(a)(9); Part 100; 100.3(B)(1); 100.3(C)(3); 100.6(A); 100.6(B)(4); 101.1; Part 122; 122.10; Opinions 09-178; 07-215; 07-101; 06-132; CPLR 4312(1), 4321; http://www.nycourts.gov/ip/gfs/Part36ExplanatoryNotes.pdf.

Opinion:

         A retired judge, designated as a Judicial Hearing Officer (JHO) in a particular court, asks whether he/she may accept “an appointment as a special referee by [a] [j]udge of that same court.” The inquiring JHO’s role as special referee would be to supervise discovery in a particular matter pending before the appointing judge. The inquiring JHO indicates that his/her compensation as special referee would be set by the appointing judge and paid for equally by all parties.

         JHOs, like others who perform judicial functions within the judicial system, must comply with the Rules Governing Judicial Conduct (“the Rules”) “in the performance of their judicial functions and otherwise must so far as practical and appropriate use such rules as guides to their conduct” (22 NYCRR 100.6[A]). Thus, a JHO must, among other things, “be faithful to the law and maintain professional competence in it” (22 NYCRR 100.3[B][1]). Like a part-time judge, a JHO “may accept private employment or public employment in a federal, state, or municipal department or agency, provided that such employment is not incompatible with his/her quasi-judicial office and does not conflict or interfere with the proper performance of [his/her] [quasi-]judicial duties” (22 NYCRR 100.6[B][4]; see e.g. Opinion 06-132 [for most purposes, JHO is held to same standard of ethical conduct as a judge]).

         The Committee notes, preliminarily, that nothing in Part 100 of the Rules explicitly bars an appointment of a JHO as a special referee (see e.g. 22 NYCRR 100.3[C][3] [setting forth ethical limitations pertaining to judicial appointments]). Indeed, the word “referee” does not appear in Part 100. Moreover, although the Committee has not previously considered whether the quasi-judicial duties of a special referee would inherently conflict or be ethically incompatible with the quasi-judicial duties of a JHO (see 22 NYCRR 100.6[B][4]), the Committee notes that a part-time judge’s judicial duties in a town court do not appear to be incompatible with his/her judicial duties in another municipal court (see e.g. Opinion 07-101).

         On these facts, the Committee sees no reason to assume that performing quasi-judicial duties on behalf of the Unified Court System in two different capacities (such as JHO and special referee) would inherently conflict or be ethically incompatible, as neither position is subject to the other’s jurisdiction, review, or approval (compare Opinion 07-215 [part-time town justice may serve as hearing officer for a local housing authority, where the authority “is not subject to the town court’s jurisdiction”] with Opinion 09-178 [part-time town justice may not serve as administrator of assigned counsel program, where he/she would approve attorneys’ vouchers as both the presiding judge and as program administrator]).

         Thus, it appears that the inquiring JHO may accept an appointment as special referee unless otherwise prohibited by law or rule (see 22 NYCRR 100.3[B][1]). The next question is whether Part 36 (22 NYCRR pt 36) applies to appointment of a special referee to supervise discovery. The Committee concludes that it does not. Although “referee” appointments are generally governed by Part 36 of the Rules, “special masters and those otherwise performing judicial functions in a quasi-judicial capacity” are exempt (22 NYCRR 36.1[a][9]). In the Committee’s view, a special referee is, in essence, a special master who supervises disclosure in a case, by the designation of the judge handling the case and, thus, is exempt from Part 36 because he/she is “performing judicial functions in a quasi-judicial capacity” (id.).¹ The Committee also notes that Part 122, the section specifically authorizing and governing JHOs, also does not preclude JHOs from appointment as special referees (see e.g. 22 NYCRR 122.10 [discussing conflicts]). Accordingly, as long as it is lawful for the inquiring JHO to accept the appointment, a question on which the Committee cannot comment (see 22 NYCRR 101.1), it is also ethically permissible.²

         The Committee thus concludes that a former judge, designated as JHO in a particular court may also accept an appointment as a special referee to supervise discovery in a matter in the same court, unless prohibited by law, and unless the specific appointment will conflict or interfere with his/her responsibilities as JHO (see generally 22 NYCRR 100.6[B][4]). Moreover, the Rules Governing Judicial Conduct do not prohibit the inquiring JHO from accepting a fee set by the appointing judge, as long as the compensation is not “beyond the fair value of services rendered” (22 NYCRR 100.3[C][3]; but see also CPLR Rule 4321).

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     ¹ Section G of the Explanatory Note to Part 36 supports this conclusion, noting that “[r]eferees are treated differently under Part 36 depending on the purpose for which they are appointed.” Specifically, “[n]o matter what their title,” when referees are “used in a quasi-judicial capacity to supervise discovery or conduct trials in civil actions or proceedings, ... they are exempt from Part 36” (http://www.nycourts.gov/ip/gfs/Part36ExplanatoryNotes.pdf, citing 22 NYCRR 36.1[a][9]).

     ² The Committee notes that the Civil Practice Law and Rules, on its face, appears to contemplate that a judge may appoint a JHO to serve as referee (see CPLR 4312[1] [“A court may designate either one or three referees; provided, however, a judicial hearing officer may be designated a referee, in which case there shall be only one referee”]). However, the legal significance of this or other potentially relevant statutory provisions or case law is beyond the Committee’s jurisdiction.