October 23, 2008
Digest: There is no per se ethics bar to a Judicial Hearing Officer also serving as a compensated arbitrator and/or mediator for a private firm that provides Alternate Dispute Resolution. Such Judicial Hearing Officer must, however, ensure that such service does not create an appearance of impropriety or cast reasonable doubt on the Judicial Hearing Officer’s capacity to act impartially while in that role.
Rules: CPLR 4301; 22 NYCRR 100.1, 100.2; 100.4; 100.4(F); 100.6(A); 101.1; 122.5(a); Opinions 07-13; 06-84; 01-19 (Vol. XIX); 91-04 (Vol. VII).
An Administrative Judge, at the request and with the consent of two Judicial Hearing Officers (hereinafter JHOs), raises the following question for the Committee. The two JHOs have expressed a desire to perform extrajudicial work as mediators and/or arbitrators for a private Alternate Dispute Resolution (hereinafter ADR) firm. Many of the same attorneys and clients who appear before these JHOs in their court-related work also retain the same ADR firm to resolve disputes out of court. Moreover, the ADR firm is sometimes used by parties currently litigating matters in these JHOs’ courts to settle pending cases through mediation. The Administrative Judge, on behalf of these JHOs, asks whether they may simultaneously serve in both capacities, and, if so, what ethics concepts are implicated and what, if any, resulting ethics improprieties might arise.
As an initial matter, a JHO is appointed pursuant to Part 122 of the Rules of the Chief Administrative Judge to one or more panels of JHOs for particular courts in individual counties (see 22 NYCRR 122.5[a]). The appropriate administrative judge then may assign a JHO from such a panel to preside in a particular matter (see id.). A JHO so assigned possesses all the same powers as a referee to hear and determine (see CPLR 4301).
JHOs are bound by the Rules Governing Judicial Conduct in the performance of their judicial duties, “and otherwise shall, so far as practical and appropriate, use such rules as guides to their conduct” (22 NYCRR 100.6[A]). These mandates include upholding the integrity and independence of the judiciary, avoiding impropriety and the appearance of impropriety, and conducting extra-judicial activities in such a manner as to minimize the risk of conflict with their quasi-judicial responsibilities (see 22 NYCRR 100.1, 100.2; 100.4; 100.6[A)]).
Although a full-time judge may not act as an arbitrator or mediator, the same restriction does not apply to a JHO (see 22 NYCRR 100.4[E]; 100.6[A]). Therefore, the Committee previously has concluded that a JHO may, subject to the restrictions on solicitation set forth in New York Code of Professional Responsibility, inform lawyers that he/she is available to serve as a private mediator or arbitrator in cases pending in counties other than those in which he/she is on a panel to serve as a JHO (see Opinion 01-19 [Vol. XIX]). In addition, a JHO is permitted to serve as a private mediator in a divorce action, where no action has yet been commenced by either party, even though such an action could be commenced in the JHO’s court, as long as the JHO would be “thereafter disqualified from presiding as a JHO in any matter subsequently commenced by any party to the mediation” (Opinion 06-84).
In contrast, the Committee concluded, in another opinion, that a JHO could not serve as a private arbitrator for a matter already commenced before a different jurist in the court in which he/she serves as a JHO, notwithstanding the fact that the JHO offered to disqualify him/herself should the matter later be referred to him/her (see Opinion 07-13). In the Committee’s view, the intention to disqualify “does not remedy the evident appearance of impropriety or the risk of conflict” presented by the JHO’s service as a mediator in a pending matter (id.).
The Committee has not previously considered, however, whether a JHO may be employed as a mediator and/or arbitrator by an organization that provides ADR services, rather than performing such services as an individual. The Committee concludes that this is a distinction without a difference. Indeed, in an analogous context, the Committee has advised that a part-time City Court judge may work for a “private arbitration association” provided that he/she “upholds the independence of the judiciary , avoids impropriety and the appearance of impropriety , and impartially and diligently performs his or her judicial duties ” (Opinion 91-04 [Vol. VII] [citations omitted]).
The Committee thus concludes that there is no per se ethics bar to a JHO also serving as an arbitrator or mediator on the roster of a private firm offering such services to litigants.
The inquiring administrative judge also asks for advice concerning prospective ethical concerns beyond those outlined in Opinions 07-13 and 06-84. The Committee, however, cannot respond without a specific factual scenario to consider.
Nevertheless, the inquiring Administrative Judge may wish to promulgate policies and procedures that will assist JHOs who also serve as mediators and/or arbitrators for an ADR firm in avoiding even the appearance of impropriety (see 22 NYCRR 100.2).
For example, to avoid the risk of even an appearance of impropriety, such guidelines or policies might preclude a JHO from simultaneously presiding in court and on assignment by an ADR firm when both matters involve the same parties and/or lawyers. In addition, such guidelines or policies might impose a period during which a JHO must refrain from presiding in a matter in his/her court, after presiding in a case assigned by an ADR firm, where the same parties and/or lawyers are involved and vice versa.
As the Committee’s advice is based solely on existing factual scenarios, a JHO who also performs services for an ADR firm should be and is encouraged to submit new inquiries as specific concerns arise.