March 10, 1994
Digest: A judge may preside over cases where a former Hearing Examiner of the court appears, unless the judge determines that his or her relationship with the attorney might influence the judge’s conduct or judgment.
Rules: 22 NYCRR §100.2(b)
The judges of a Family Court ask whether a former Hearing Examiner of that court may practice before the court and, if so, what limitations, conditions, or restrictions, if any, are applicable.
In actuality, the initial question i.e., whether a former Hearing Examiner may practice in the court where the Hearing Examiner previously served, presents a possible question not of judicial ethics but of professional ethics, which is not for this Committee to resolve (see e.g. Opinion 89-61 Vol. III). Related questions, (e.g. whether the former Hearing Examiner could appear in matters not handled by him or her as a Hearing Examiner but about which knowledge had been acquired) may likewise raise questions of professional ethics.
Assuming, however, that there is no per se bar to the former Hearing Examiner practicing in the court, the judges should each be guided by the requirement that “No judge shall allow his or her family, social or other relationships to influence his judicial conduct or judgment” (22 NYCRR §100.2(b)).
Thus, each judge of the court would have to determine whether his or her relationship to the former Hearing Examiner was such as to impair the exercise of independent judgment. Nothing in the submission of the judges indicates that this is the case, and, accordingly, on the assumption that the attorney is free to practice in the court, there is no automatic bar to a judge presiding in such matters.