Opinion 93-41

April 29, 1993

Digest:         A Family Court Hearing Examiner may not act as a marital or family counselor.

Rules:          Code of Judicial Conduct, Canon 5(C); Family Court Act §439(a) and (e); Uniform Rules for the Family Court §205.32(b).

Opinion:

         The Committee, on further consideration and in light of further information, hereby withdraws its earlier January 28, 1993 Opinion (92-98) on this subject, which was issued but not published, and instead, substitutes the following opinion.

         An administrative judge has requested an opinion as to whether Family Court Hearing Examiners may act as marital or family counselors outside of court hours. Although a hearing examiner is a non-judicial employee of the Unified Court System (Uniform Rules for the Family Court §205.32[b]), this Committee has responded previously to ethical inquires concerning Family Court Hearing Examiners (see, Opinion 91-73, Vol. .IX; Opinion 89-61, Vol. III; Opinion 88-44, Vol. II).

         The powers and duties of hearing examiners are set forth in the Family Court Act, §439(a), which states that, “except as hereinafter provided, hearing examiners shall be empowered to hear, determine and grant any relief within the powers of the court in any proceeding under this article, articles five an five-A of this act, article 3-A of the domestic relations law, and objections raised pursuant to section fifty-two hundred forty-one of the civil practice law and rules.” The statute further provides, however, that a Family Court Hearing Examiner shall not be empowered to hear “issues of contested paternity, custody, visitation including visitation as a defense, and orders of protection or exclusive possession of the home.. .”

         While the rules of the Judicial Conduct (22 NYCRR Part 100) do not apply to non-judges, in view of the quasi-judicial functions performed by Family Court Hearing Examiners, we have determined previously that the Code (Canons) of Judicial Conduct is applicable to them (see, Opinion 92-73; Opinion 89-61; Compliance with the Code of Judicial Conduct, McKinney's Book 29, Judiciary Law §§500 to End, p.624). Moreover, since Family Court Hearing Examiners are bound by the Code of Judicial Conduct, we have previously determined that they may not serve as arbitrators, even after working hours, because Canon 5(E) expressly prohibits a judge from acting as "an arbitrator or mediator" (see, Opinion 92-73).

         Family Court Hearing Examiners may not serve as arbitrators or mediators, since arbitrators, mediators and Hearing Examiners are called upon to resolve disputes, and serving in the dual role of Hearing Examiner and arbitrator or mediator may create the appearance of a lack of judicial impartiality. Similarly, an appearance of partiality arises where a Family Court Hearing Examiner provides counseling to husbands and wives experiencing marital discord, as such counseling may involve mediation.

         Although hearing examiners are not empowered to hear matters pertaining to custody, visitation or family offenses, hearing examiners are empowered to hear support matters which may involve hearing examiners, who provide counseling services, in frequent transactions with persons who might come before them in Family Court.

         If hearing examiners provide such counseling services, they may have to recuse themselves in court matters. In many counties throughout the state, there is only one hearing examiner assigned to a particular family court. Reassignment of another hearing examiner in a small county where a hearing examiner is actively providing counseling services would be a major administrative burden and may be costly in time and expense.

         Moreover, litigants may perceive that a hearing examiner is the functional equivalent of a judge. Many litigants and attorneys address the hearing examiners as “Judge,” or “Your Honor.” Some hearing examiners wear judicial robes. They promulgate orders. Thus, even if a litigant is not before a hearing examiner on a custody or visitation issue, the litigant's perception may well be that he or she is before a judge for counseling or therapy. This creates an appearance of impropriety which should be avoided. Accordingly, hearing examiners should not serve as marital or family counselors.