December 9, 2011
Digest: A Judicial Hearing Officer may also serve as a Notary Public.
Rules: NYS Const. Art. 6 §20; CPLR 2309(a) and 4301; 22 NYCRR 100.2; 100.2(A); 100.6(A); Opinions 09-165; 03-129; 01-109 (Vol. XX); 00-117 (Vol. XIX); 94-78 (Vol. XII)
A Judicial Hearing Officer (JHO) asks whether he/she may also serve as a Notary Public.
JHO’s must comply with the Rules Governing Judicial Conduct in the performance of their judicial functions and, so far as practical and appropriate, use such Rules as a guide to their conduct (see 22 NYCRR 100.6[A]; Opinions 01-109 [Vol. XX]; 00-117 [Vol. XIX]). Therefore, JHOs must 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]).
The Committee has previously advised that a Supreme Court Justice may not continue to serve as a Notary Public because the New York State Constitution prohibits certain full-time judges from also holding any other public office or public trust with exceptions that are not applicable to the present inquiry (see NYS Const. Art. 6 §20; Opinion 03-129).
However, the New York State Constitution does not prohibit JHO’s from holding any other public office or trust (see NYS Const. Art. 6, §20), and the Committee previously has advised that, despite the Constitutional prohibition, there is nothing intrinsically unethical in a judge serving as a Notary Public in light of the authority otherwise given to judges to take oaths and acknowledgments (see 03-129). The same can be said for a JHO as he/she also has the authority to take oaths and acknowledgments (see CPLR 2309[a]; 4301). Finally, the Committee has previously concluded that a town or village justice may also serve as a notary public (see Opinion 94-78 [Vol. XII]), and the Committee has previously treated JHO’s and part-time judges similarly (see Opinion 09-165). Accordingly, a JHO may also serve as a Notary Public.