Opinion 89-63

May 25, 1989

Topic:          Whether a retired judge designated as a Judicial Hearing Officer (JHO) may refer legal matters to an attorney, assist in the case and receive a fee.

Digest:         The Committee will respond to ethical inquires from Judicial Hearing Officers (JHO); a JHO may participate as attorney and receive a fee in a contested proceeding that is not commenced in the court in the county where the JHO serves; but cannot do so with respect to a contested proceeding commenced in the court in the county where the JHO serves.

Rules:          22 NYCRR Part 101; Judiciary Law, Article 22

Opinion:

         A retired judge designated as a Judicial Hearing Officer (JHO) pursuant to Judiciary Law, Article 22, and 22 NYCRR Part 122, asks whether a JHO, as an attorney, may refer legal matters to another attorney, assist in preparation of the case (without appearing in court), and receive a fee.

         At the outset, the Committee determines that it will exercise its discretion to respond to ethical inquiries from Judicial Hearing Officers (JHOs). The Committee notes subdivision (b) of section 101.3 of the Rules of the Chief Administrator of the Courts governing the Advisory Committee on Judicial Ethics (22 NYCRR 101.3 [b]) , which reads as follows :

(b) The Committee may respond to questions concerning judicial ethics posed by persons who exercise quasi-judicial duties in the Unified Court System but who are not judges or justices of the Unified Court System

         Judicial Hearing Officers (JHOs) are designated by the Chief Administrator of the Courts (Article 22 of the Judiciary Law; 22 NYCRR Part 122), and each JHO further is designated by the Chief Administrator to serve on panels of JHOs in specified courts and in specified counties.

         A JHO is permitted to practice law fully, except as such practice is limited by section 122.10 of the Chief Administrator’s Rules (22 NYCRR 122.10), which reads as follows:

122.10. Conflicts. (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 represented 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.

         The referrals, legal assistance, and fee-taking that are inquired about by the JHO in this inquiry, in the Committee’s opinion, constitute the practice of law, and, as such, are generally permitted to a JHO, but are not permitted to a JHO with respect to actions or proceedings that fall within subdivision (c) of the above cited section. That is, a JHO may not participate as an attorney in any way, even as a mere referring or assisting attorney, and therefore may not receive a fee, with respect to “any contested matter in a court in a county where he or she serves on a judicial hearing officer panel for such court.”’