Opinion 16-134

September 8, 2016

Digest:         A full-time court attorney-referee may not work part-time as a real estate agent.

Rules:          22 NYCRR 100.4(D)(3); 100.4 (D)(3)(b); 100.4(H)(1)-(2); 100.6(A); Opinions 11-50; 05-130(A); 99-84; 95-100.

Opinion: 

         A court attorney-referee asks if he/she may work part-time as a real estate agent during his/her off hours. The referee would sell and rent residences in association with a local real estate brokerage firm, and would receive a standard commission appropriate to each transaction closed.¹ He/she works in a court that does not ordinarily hear landlord/tenant disputes or breach of contract cases, and has never presided over a matter involving real estate agents or brokerage offices.

         Because court attorney-referees perform judicial functions within the judicial system, they must comply with the Rules Governing Judicial Conduct in the performance of their judicial functions, and otherwise “so far as practical and appropriate” use such rules as guides to their conduct (see 22 NYCRR 100.6[A]; Opinion 11-50). A full-time judge may not serve as an officer, director, manager, general partner, advisor, employee or other active participant of any business entity (see 22 NYCRR 100.4[D][3]), unless an exception applies. For example, a full-time judge may “manage and participate in a business entity engaged solely in investment of the financial resources” of the judge or his/her family (see 22 NYCRR 100.4[D][3][b]).

         Applying the business activity rule, the Committee has said a full-time judge may not retain, renew, or apply for a real estate broker’s or sales license (see Opinions 05-130[A]; 95-100; 22 NYCRR 100.4[D][3]).

         The question here is whether the business activity rule also applies to a full-time court attorney-referee. In Opinion 99-84, the Committee applied 22 NYCRR 100.4(D)(3)(b) to a full-time quasi-judicial official and concluded he/she could own stock in and be an officer of a family-owned corporation in which the support magistrate and his/her spouse were the sole shareholders. In applying this exception to the business activity rule to a support magistrate, the Committee implicitly recognized that the business activity rule applied.

         Here, too, we conclude a full-time quasi-judicial official is subject to Section 100.4(D)(3), and a court-attorney referee therefore may not act as a real estate agent (see Opinions 05-130[A]; 95-100; 22 NYCRR 100.4[D][3]).

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         ¹ The referee believes the compensation would not be excessive, and plans to make all legally and ethically required disclosures (see generally 22 NYCRR 100.4[H][1]-[2]).