Opinion 16-119

September 8, 2016

Digest:         (1) A JHO may represent clients in uncontested Surrogate’s Court proceedings in any county, even if he/she is designated to serve on the JHO panel for that county’s Surrogate’s Court.

(2) A JHO who is designated to serve on the JHO panel for a county’s Surrogate’s Court must immediately withdraw from a proceeding in that court, if it becomes contested with the filing of an answer or objections.

(3) A JHO may represent clients in real estate transactions, but must immediately withdraw should the matter result in civil litigation in a court where he/she is designated to serve.

(4) A JHO’s law partners and associates are not precluded from appearing on contested matters in a court where the JHO is designated to serve.

(5) A JHO may permit his/her law firm colleagues to assume the representation on a contested matter after the JHO withdraws from representation, but the JHO must not participate further in the matter. (6) For any contested matter in a court where the JHO is designated to serve, the JHO must not advise his/her law firm colleagues on the matter, participate in the matter in any way, or receive a fee.      

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(F); 100.4(G); 100.6(A); 100.6(B)(1); 122.10(a) - (d); Opinions 15-157; 15-69; 09-230; 08-201; 07-180; 07-76; 00-117; 89-80; 89-63; 2 Harris NY Estates: Probate Admin & Litigation § 20:1 (6th ed).

Opinion:

         A judge who plans to retire soon is considering post-judicial employment as a Judicial Hearing Officer (JHO). The judge would also join a relative’s law practice as an associate of or of counsel to the firm. The judge asks if he/she may represent clients on real estate transactions and matters in Surrogate’s Court in the same county where he/she serves as a JHO and requests clarification about when such matters are deemed “contested” under 22 NYCRR 122.10(c). The judge also asks whether his/her partners and associates may assume the representation on such contested matters once he/she withdraws from the representation.

         A JHO must comply with the Rules Governing Judicial Conduct in performing his/her quasi-judicial duties and “so far as practical and appropriate” use the rules to guide his/her other conduct (see 22 NYCRR 100.6[A]; Opinion 15-157; 15-69). Therefore, like judges, quasi-judicial officials must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Although a full-time judge generally must not act as an arbitrator or mediator or otherwise perform judicial functions “in a private capacity” (22 NYCRR 100.4[F]) and must not practice law (see 22 NYCRR 100.4[G]), these limitations do not apply to a part-time judge or JHO (see 22 NYCRR 100.6[B][1]; Opinions 09-230; 08-201). Indeed, a JHO may practice law, subject to the limitations set forth in section 122.10:

(a) A judicial hearing officer shall not preside over any matter in which he or she has represented any party or any witness in connection with that matter, and he or she shall not participate as an attorney in any matter in which he or she has participated as a judge or judicial hearing officer.

(b) A judicial hearing officer shall not preside over a matter in which any party or witness is presented by an attorney who is a partner or associate in a law firm or of counsel to a law firm with which the judicial hearing officer is affiliated in any respect.

(c) A judicial hearing officer shall not participate as an attorney in any contested matter in a court in a county where he or she serves on a judicial hearing officer panel for such court.

(d) A judicial hearing officer shall not appear as an attorney before any other judicial hearing officer in any county in which he or she serves as a judicial hearing officer.

         Of particular relevance here, a JHO “shall not participate in any contested matter in a court in a county where he/she serves on a judicial hearing officer panel for such court” (22 NYCRR 122.10[c] [emphases added]). An attorney who is designated to serve as a JHO in one court in a particular county may practice law in another court in the same county, even in contested matters, so long as he/she is not designated to serve on the JHO panel for such court (see Opinions 09-230; 07-180; cf. Opinion 07-76 [ban applies in courts where attorney “is authorized” to serve as JHO, “even if no appointments … are pending, expected, or forthcoming”]).

         However, because a JHO must not participate in a contested matter in a court where he/she is designated to serve on a JHO panel (see 22 NYCRR 122.10[c]), he/she also must not advise his/her partners and associates in such matters and must not act as a referring attorney or receive a fee with respect to such matters (see Opinions 00-117; 89-63).

Surrogate’s Court Proceedings

         It is well-recognized that “the initiation of a proceeding in the Surrogate’s Court does not always signal the beginning of adversarial litigation .... It is when a respondent objects to the relief sought in the petition, or asks for some relief of his/her own to which the petitioner objects, that the matter becomes adversarial. At that point, the case will proceed in much the same way as any lawsuit would” (2 Harris NY Estates: Probate Admin & Litigation § 20:1 [6th ed]). Clearly, a JHO may practice in uncontested matters in Surrogate’s Court. However, once there is filing of an answer or objections, the matter is contested (see generally id.).¹ Thus, under 22 NYCRR 122.10(c), if a JHO is designated to serve on a JHO panel of that court, the JHO must immediately withdraw from representing or otherwise participating in the contested proceeding.

         In the Committee’s view, the JHO may nonetheless permit his/her partners or associates to assume full responsibility for a Surrogate’s Court matter that has become contested, as there is no prohibition on the partners or associates of a JHO appearing in a court where the JHO is authorized to serve (see Opinion 89-80). However, on withdrawing from the representation, the JHO must not advise his/her partners and associates in the matter (see Opinions 00-117; 89-63).

Real Estate Transactions

         Real estate transactions typically involve negotiations between a seller and buyer, or their agents, without judicial oversight. Thus, Section 122.10(c), which refers to contested matters “in a court,” ordinarily does not apply unless and until a party to the transaction seeks judicial intervention, as by initiating a civil action. At that point, the matter has become adversarial.

         Accordingly, this JHO may engage in real estate transactions that do not involve litigation within the county in which he/she is designated to serve as a JHO. If disputes pertaining to a particular transaction result in a lawsuit in a court where the JHO is designated to serve as a JHO, the JHO must immediately withdraw from the representation. Again, the JHO may permit his/her law firm colleagues to assume the representation, but may not advise them or otherwise participate in the matter behind the scenes (see Opinions 00-117; 89-63).

Conclusion

         On accepting appointment as a JHO, the inquirer may practice in uncontested Surrogate’s matters and real estate transactions within a county in which he/she is designated to serve on the JHO panel(s) for certain court(s). Should any matter become contested in a court where he/she is designated to serve on the JHO panel, he/she must withdraw from the representation. The JHO’s partners or associates may assume the representation for the contested matter, but the JHO must not advise them or share in the resulting legal fees.

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¹In Surrogate’s Court practice, the words “answer” and “objections” are often used interchangeably to signal an adversarial posture by the parties as they transition from an uncontested to a contested proceeding.