June 18, 1992
Digest: A Family Court Hearing Examiner may not act as an arbitrator.
Rules: Code of Judicial Conduct, Canon 5(E); Family Court Act §439(a) and (e); Uniform Rules - Family Court §205.32(b).
An administrative judge has requested an opinion whether a Family Court Hearing Examiner can act as an arbitrator for a private firm, after working hours, on matters unrelated to Family Court. Although a hearing examiner is a non-judicial employee of the Unified Court System (Uniform Rules - Family Court §205.32[b[), this Committee has previously responded to ethical inquiries concerning Family Court Hearing Examiners.
The powers and duties of hearing examiners are contained 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 and five-A of this act, article three-A of the domestic relations law, and objections raised pursuant to section fifty-two hundred forty-one of the civil practice law and rules."
Additionally, Section 439(e) states that "The determination of a hearing examiner shall include findings of fact and a final order which shall be entered and transmitted to the parties."
While the Rules of Judicial Conduct (22 NYCRR Part 100) do not apply to non-judges, the Code of Judicial Conduct, is applicable here. The Code Compliance provision, although not specifically listing Family Court Hearing Examiners, does provide that "Anyone, whether or not a lawyer, who is an officer of a judicial system performing judicial functions, ......, is a judge for the purpose of this Code." (Compliance with the Code of Judicial Conduct, McKinney's Book 29, Judiciary §§500 to End, p.624). Predicated upon their powers and duties, Family Court Hearing Examiners meet this criterion and are bound by the Code of Judicial Conduct, which specifically states that "A judge should not act as an arbitrator or mediator" (Canon 5[E]).
Accordingly, Family Court Hearing Examiners may not serve as arbitrators, even if after working hours, and even if on matters unrelated to Family Court.