Opinion 22-40

March 10, 2022

Digest:         Where a court’s ADR program provides for a free initial session with an approved outside neutral/mediator, optionally followed by privately-paid sessions if desired, the neutral may use courthouse space only for the free initial session.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); Opinions 08-192; 93-51.

Opinion:

         The inquiring administrative judge has established an alternative dispute resolution (ADR) program for civil matters, to help alleviate delays and backlogs resulting from the COVID-19 pandemic. The panel of available neutrals/mediators includes outside practitioners who, after application and mandatory training, have been approved by the administrative judge. The first 90-minute session of ADR is offered free of charge to litigants who choose to participate in the program; “thereafter, the participants pay a reduced fee up to a maximum amount.” The program rules provide:

Should the parties choose to continue beyond the initial session, a neutral shall be compensated at a rate agreed upon by the neutral and the parties, which shall not exceed a rate of $450 per hour. A written agreement setting forth the neutral’s rate ... for compensable time beyond the initial session shall be executed by the parties prior to the start of the initial session.... Neutrals on the Program’s Roster are strongly encouraged to work on a sliding fee scale taking into account a party’s financial circumstances.

The program rules further provide that while the ADR process shall remain confidential, the neutral “may make general references to the fact of ADR services rendered in any action to collect an unpaid authorized fee for services performed under local court rules.” The judge asks if it is ethically permissible to allow the neutrals/mediators to use the courthouse for their ADR sessions under this program.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Moreover, a judge may not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]).

         A judge may permit a pro bono panel or group of volunteer lawyers to use courthouse space, provided it is made clear “that that volunteer attorneys do not speak for the court, that the court does not recommend any particular volunteer attorney, and that the court does not, by virtue of the volunteer attorneys’ availability in the courtroom, officially recommend them or their services” (Opinions 08-192 [administrative judge may permit a pro bono local action committee to implement a pro bono project in city court whereby volunteer attorneys are available in the courthouse to consult with and to represent tenants involved in pending summary proceedings]; 93-51 [no ethical objection to a town judge accommodating a pro bono panel of local attorneys in the courthouse to consult with unrepresented parties in civil and small claims actions]).

         The difference here is that, outside of the initial session, the neutrals/mediators are not offering their services pro bono, but rather are being compensated for their services at an hourly rate of up to $450 per hour. To allow outside neutrals/mediators to use courthouse space for services for which they are being paid could create an appearance that public resources are being used for private commercial advantage and thereby diminish the public’s confidence in the judiciary’s integrity and impartiality.

         Furthermore, the program rules contemplate that a party’s failure to pay agreed-upon fees for ADR services after the free initial session could result in an action for the collection of fees. Permitting the neutral to use the courthouse for free to generate fees under a court-sponsored ADR program, which the neutral could then sue to collect in the very same courthouse, could give rise to an appearance of impropriety or convey the impression that the neutral has special access to the judges in the courthouse or is in a special position to influence the judges (see 22 NYCRR 100.2[C]).

         As a matter of courtesy and convenience, we conclude the administrative judge may allow outside neutrals/mediators to use courthouse space for the free initial session of the court-sponsored ADR program only. Should the litigants retain the services of the neutral for further ADR sessions, however, those privately-paid sessions must be conducted elsewhere.