February 22, 2007
Digest: Under the circumstances, a Court Attorney-Referee who is a party in a civil litigation should not voluntarily disclose his/her status as such to the Judicial Hearing Officer (“JHO”) presiding, and should advise his/her attorney -spouse not to do so, unless relevant, related, or necessary.
Rules: 22 NYCRR 100.2(A); 100.2(C); 100.6(A); Opinions 06-145; 06-93; 04-24; 97-36 (Vol. XV); 95-119 (Vol. XIII).
A Court Attorney-Referee serving in a Family Court in a suburban county, and his/her spouse, are petitioners in a small claim assessment review proceeding in Supreme Court. The Referee’s spouse (a practicing attorney) will represent the couple in the proceeding. The Referee will not attend.
The proceeding has been referred to a Judicial Hearing Officer (JHO) who serves in the same courthouse with the inquiring Referee. The inquirer states that he/she does not know the JHO and that to the Referee’s knowledge, the JHO does not know the Referee. The inquirer asks if he/she has an obligation to disclose to the JHO that one of the co-petitioners is a quasi-judicial official who serves in the same courthouse where the proceeding is taking place.
This Committee has previously determined to entertain inquiries from Court Attorney-Referees as quasi-judicial officials. Opinion 95-119 (Vol. XIII). Further, it concluded these Referees, as quasi-judicial officials, are held to the same ethical standards as judges. 22 NYCRR 100.6(A); Opinion 95-119 (Vol. XIII).
The Rules Governing Judicial Conduct do not require disclosure of a litigant’s status as a judge (or quasi-judicial official) to the tribunal or judge presiding. Indeed, an unnecessary, voluntary announcement of the Referee’s status, even if well-intentioned, may be perceived as an inappropriate invocation of such status to further the private interests of the inquirer. 22 NYCRR 100.2(A); 100.2(C); Opinions 06-145; 06-93; 04-24; 97-36 (Vol. XV).
Therefore, the Referee should not voluntarily disclose his/her status to the JHO presiding, and should advise his/her spouse not to make such disclosure, unless it is relevant, related, or necessary to the proceeding.