Opinion 13-72

June 13, 2013

Digest:         A part-time attorney/judge who occasionally performs arraignments for a neighboring municipality’s court, but is not an “acting” member of that court and continues to sit as a judge of his/her own court when performing such arraignments, may be included on a list of attorneys who are willing to serve as compensated arbitrators in that municipality.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(F); 100.6(B)(1); 100.6(B)(4); Opinions 09-88; 08-201; 07-13; 07-12; 06-64; 01-19 (Vol. XIX); 00-55 (Vol. XIX); 93-13 (Vol. X); 92-69 (Vol. IX); 91-04 (Vol. VII); 91-03 (Vol. VII).

Opinion:

         The inquiring part-time attorney/judge states that he/she sometimes performs arraignments for a neighboring municipality. The judge asks if he/she may be included on a list of attorneys who are willing to serve as compensated arbitrators in a court-organized arbitration program for civil cases in certain municipalities, including the one for which the judge sometimes performs arraignments. The judge states that he/she is not an “acting” judge of the neighboring municipality’s court; rather, the judge continues to sit as a judge of his/her own court, even when the judge performs arraignments for the neighboring municipality’s court.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always promote public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]), and must not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]). A part-time judge may accept private employment or public employment in a federal, state or municipal department or agency, provided that such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge's duties (see 22 NYCRR 100.6[B][4]).

         While full-time judges are specifically prohibited from acting as arbitrators or mediators “in a private capacity” (22 NYCRR 100.4[F]), part-time judges are generally permitted to do so (see 22 NYCRR 100.6[B][1]; Opinions 09-88; 06-64; 93-13 [Vol. X]; 92-69 [Vol. IX]; 91-04 [Vol. VII]; 91-03 [Vol. VII]; see also Opinion 08-201 [applying the same standard to a judicial hearing officer (“JHO”)]).¹

         Moreover, the Committee has advised that a JHO may, subject to certain limitations, inform lawyers that he/she is available to serve as a private arbitrator in cases pending in counties other than those in which he/she serves as a JHO (see Opinion 01-19 [Vol. XIX]).

         Such employment is, of course, subject to certain limits. For example, the Committee has advised that a part-time judge may not serve as a mediator in cases pending before any judge in his/her court, as this could create an appearance of impropriety or conflict with his/her judicial duties (see Opinion 09-88). Similarly, a JHO may not serve as a private arbitrator in a pending action commenced in the court where he/she has been designated to serve as JHO (see Opinion 07-13); and a part-time village judge must not serve as a hearing officer in an employee disciplinary proceeding involving a town and one of its employees when there is a criminal proceeding against the employee pending in the judge’s court (see Opinion 00-55 [Vol. XIX]). Also, a part-time judge may not serve as an arbitrator or mediator with an agency to which the judge refers cases, unless the judge is uncompensated and the program charges no fee to the participants (see Opinion 09-88).

         Here, because the judge presides in a different court from those in which he/she will serve as an arbitrator, and is not an “acting” member of such courts, it is permissible for the judge’s name to be included on a list of attorneys who are willing to serve as compensated arbitrators in those municipalities.

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     ¹ The Committee has also advised that, absent a conflict, a full-time judge may serve as volunteer arbitrator in the Small Claims Part of New York City Civil Court because such service would not be performed in a “private capacity” (see Opinion 07-12 [noting that a conflict would exist if the judge presides in a court that hears appeals from such volunteer arbitrators’ decisions]).