Opinion 89-80

September 12, 1989

Please Note: In 2019, Section 122.10(c) was amended to read as follows: “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.”   The administrative order is available at https://www.nycourts.gov/LegacyPDFS/rules/chiefadmin/AO-169-19.pdf .

Digest:         The partners of a Judicial Hearing Officer are not prohibited from practicing in any contested matter in a court in a county where the Judicial Hearing Offices serves on the Judicial Hearing Officer panel for such court.

Rule:            22 NYCRR 122.10(c); opinion 89-63

Opinion:

         A sitting judge who is considering becoming a Judicial Hearing Officer (JHO) upon retirement asks whether, after the judge retires and becomes a JHO, the judge's membership as a partner in a law firm would prohibit the judge's prospective partners and the associate members of the law firm from practicing law in the county in which the judge will serve as a Judicial Hearing Officer. Thus, the question is related not directly to the conduct of the inquirer while acting as a Judicial Hearing Officer but to proscriptions, if any, on the law firm in which the judge may become a partner.

         The Committee has previously determined to respond to ethical inquiries from Judicial Hearing Officers (see, opinion 89-63).

         Subdivision (c) of the Chief Administrator’s Rules 122.10 (22 NYCRR 122.10) provides that:

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.

         The rule is silent with relation to the partners of a JHO except as it bears on their appearance before the JHO who is a member of their firm. Rule 122.10, subdivision (b), provides as follows:

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.

         As we stated in Opinion 89-63, a JHO is permitted to practice law fully, except as limited by the rule (22 NYCRR 122.10). While we pass only on questions of judicial ethics, not on questions of professional ethics, we point out that the prohibition contained in subdivision (b) of Rule 122.10 contains no limitations on the partners of the JHO. Consequently, we must conclude that unless an appearance of impropriety may be perceived in the special circumstances of an individual case or a particular conflict of interest exists, there is no prohibition upon the partners or associates of a JHO participating as attorneys in the courts of a county where the JHO is authorized to serve.