Opinion 19-130

December 12, 2019

Digest:         A judge (1) may appoint a retired judge to the roster of neutrals for the same trial-level court in which he/she previously served, provided the appointment is made impartially and on the basis of merit; (2) may refer matters to the retired judge for mediation, unless he/she determines their relationship would create an appearance of impropriety; (3) may consider and decide the retired judge’s fee applications for mediation services, unless the judge determines their relationship might improperly influence the judge’s conduct or judgment.

Rules:          22 NYCRR 16.1; 36.1(a); 36.2(c)(5); 100.2; 100.2(A); 100.2(B); 100.3(C)(3); 100.3(E)(1); 146.4(a)(2); 146.4(b); Opinion 12-37.

Opinion:

         A judge asks if he/she may approve an application of a former trial-level judge, who retired less than two years ago, to serve on a roster of neutrals in the same court where he/she previously served (see 22 NYCRR Part 146).¹ The judge also asks if he/she may refer matters to the retired judge for mediation and/or decide the retired judge’s fee applications for mediation services.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). For example, a judge must “not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment” (22 NYCRR 100.2[B]) and must disqualify him/herself in proceedings where his/her impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). A judge must “exercise the power of appointment impartially and on the basis of merit,” avoiding both nepotism and favoritism (22 NYCRR 100.3[C][3]). Also, with respect to court appointments governed by Part 36, “[n]o former judge ... shall be appointed, within two years from the date the judge left judicial office, by a court within the jurisdiction where the judge served (22 NYCRR 36.2[c][5]).

         On its face, Part 146 does not bar the appointment of former judges to a court’s roster of neutrals. To the contrary, those “who have served at least five years as a judge with substantial experience in the specific subject area of the cases that will be referred to them” (22 NYCRR 146.4[a][2]), or who have “recent experience mediating actual cases in the subject area of the types of cases referred to them” (22 NYCRR 146.4[b]), may be appointed to a court roster after completing the requisite training. We also see nothing to suggest that Part 36 applies to Part 146 appointments.² Thus, this judge may approve the retired judge to serve on the court’s roster of neutrals, provided the appointment is made “impartially and on the basis of merit” (22 NYCRR 100.3[C][3]).

         The judge also asks if he/she may refer matters to the retired judge for mediation, in the same court where he/she previously served. As we observed in Opinion 12-37 (citations omitted):

[A] judge is not necessarily disqualified from presiding when a former judge of the same court appears before him/her. Rather, each currently presiding judge must determine whether his/her relationship with the former judge creates an appearance of impropriety or causes his/her impartiality to reasonably be questioned. The Committee has further advised that a judge may ask relevant questions to determine if a former judge’s current role representing clients presents a conflict or creates an appearance of impropriety.

         Accordingly, the judge may refer mediation matters to the retired judge, after he/she exercises due diligence to ensure his/her impartiality would not reasonably be questioned in making such referrals (see id.).

         We likewise conclude this judge may consider and decide fee applications that may be sought by the retired judge for mediation services, unless he/she determines their relationship would impair the exercise of independent judgment (cf. 22 NYCRR 100.2[B]).

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¹ Although appellate court judges may not appear in person in their former appellate court for two years (see 22 NYCRR 16.1; Opinion 12-37 fn 1), we are aware of no such limitation on trial court judges.

² Section 36.1(a) lists the court appointments governed by Part 36. Although it includes terms such as “guardians” and “court evaluators,” it does not include terms such as “mediators,” “roster of neutrals,” or “Part 146" (see 22 NYCRR 36.1[a]).