Opinion 90-12

January 18, 1990

Digest:         A part-time judge may not serve as a mediator with an agency to which the judge refers court cases.

Rules:          22 NYCRR 100.2; 100.5 (e)

Opinion:

         A part-time judge who serves as a mediator/arbitrator with a dispute resolution agency, to which the judge refers court cases, and which charges a fee to participants, inquires whether a conflict exists between his/her two positions. The judge states that he/she does not mediate his/her own cases.

         Section 100.2 of the Rules of the Chief Administrator provides that a judge must avoid impropriety and the appearance of impropriety. Section 100.5 (e) of the Rules of the Chief Administrator provides that “a part-time judge acting as an arbitrator or mediator shall do so with particular regard to sections 100.1, 100.2 and 100.5 of this part.

         The judge may not serve as both a judge and a mediator/arbitrator if the judge is compensated as a mediator, or if parties whom the judge refers to mediation are charged a fee, as it may appear that the judge is profiting by referring court cases to mediation. The judge may serve as mediator/arbitrator only if the judge’s court has no jurisdiction to refer cases to the particular dispute resolution center, or if the judge receives no compensation for his/her services as a mediator/arbitrator and the center charges no fee for its services.