Opinion 20-79

April 30, 2020

Digest:         As long as a JHO remains listed on a court’s assignment panel, he/she may not serve as an arbitrator or mediator for any contested matter in a court in a county where he/she serves on a JHO panel for such court, unless appointed by the court to so serve.

Rules:          22 NYCRR 36.1(a)(9); 100.3(B)(1) 100.6(A); 100.6(B)(4); 101.1; 122.8; 122.10(c); Opinions 18-09; 16-119; 12-123; 06-132.

Opinion:

         An administrative judge asks if judicial hearing officers under his/her supervision may mediate cases for local attorneys without restriction at this time, as “there is no JHO funding for the current budget year.” The judge says his/her district has previously assigned JHOs only on a limited basis, but these already limited assignments are no longer possible. The judge further asks if JHOs may be included on the Part 146 roster of neutrals.

         JHOs, like others who perform quasi-judicial functions within the judicial system, must comply with the Rules Governing Judicial Conduct “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,” provided it “is not incompatible with” his/her 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]). JHOs must also comply with Parts 36 and 122 and other applicable limitations in their practice of law or outside employment (see e.g. Opinions 16-119; 12-123).

         JHOs remain subject to all such limitations as long as they retain their JHO status or designation, even if they will not receive any JHO assignments (see Opinion 18-09). We take no position on whether a JHO may “apply for temporary removal of their names from any and all of their assigned panels” during a period of reduced activity (id.).

         Accordingly, a JHO whose designation has not been rescinded must comply with Section 122.10(c) (emphasis added):

A judicial hearing officer shall not participate as an attorney or, unless appointed by the court on terms including receipt of compensation pursuant to section 122.8 of this Part, as a referee, mediator, or arbitrator, or similar officer, in any contested matter in a court in a county where he or she serves on a judicial hearing officer panel for such court.

         Thus, we conclude a JHO on a specific court panel may serve as an arbitrator or mediator for a contested case in such court only if appointed by a judge at the JHO per diem fee (see 22 NYCRR 122.8 [compensation limited to $400/day]).¹

         In sum, so long as a JHO remains listed on an assignment panel, all practice and assignment restrictions continue in force (see Opinion 18-09). These include the prohibition on serving as an arbitrator or mediator in any contested matter in a court in a county where he/she is on a JHO assignment panel for such court, unless appointed by the court to so serve (see 22 NYCRR 122.10[c]; 122.8).

         With respect to the judge’s second question, as to whether JHOs may be listed on a court’s Part 146 roster of neutrals, we believe this is primarily an administrative question. Accordingly, we must decline to respond (see generally 22 NYCRR 101.1).

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¹ Although the administrative judge did not ask if JHOs may accept referee appointments in courts where they remain on the JHO panel, we note for completeness that most “referee” appointments are subject to Part 36. Only “special masters and those otherwise performing judicial functions in a quasi-judicial capacity” are exempt (22 NYCRR 36.1[a][9]; see also Opinion 12-123). 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]).