January 25, 2001
PLEASE NOTE: On March 28, 2012, the Committee retracted Opinion 00-117 because "a JHO ... who neither receives appointments nor volunteers to serve as a JHO while the JHO program is suspended, should not be subject to the limitations set forth in Opinion 00-117" (see Opinion 11-38). However, Opinion 00-117 will be "deemed re-issued and effective on the date that the Office of Court Administration re-instates the JHO program" (see Opinion 11-38).
Digest: (1) A Judicial Hearing Officer (JHO), serving of counsel to a law firm, may not advise partners and associates regarding contested matters that are commenced in a court in which he or she has been designated to serve on the court's JHO panel. (2) A Judicial Hearing Officer, as a quasi-judicial officer, is subject to the limitations that apply to judges of the Unified Court System concerning political activity.
Rule: 22 NYCRR 100.5; 122.1 et. seq.; 122.10(c); Opinions 89-63 (Vol. III); 94-44 (Vol. XII).
A retired judge, designated to serve as a Judicial Hearing Officer (JHO) pursuant to 22 NYCRR 122.1 et seq., asks what limitations are imposed on a JHO serving of counsel to a law firm which practices in Supreme, Surrogate and City Courts of the inquirer's county. In particular, he/she asks whether advice may be given to partners and associates regarding matters that are commenced in a court in which he/she is authorized to serve on that court's JHO panel even if he/she is not presently performing such services. In addition, inquiry is made as to the extent a JHO is subject to section 100.5 of the Rules Governing Judicial Conduct relating to political activity.
Although a Judicial Hearing Officer is permitted to practice law, such practice is limited by section 122.10 of the Rules of the Chief Administrator. Thus as provided for in section 122.10(c), he/she is prohibited from participating "as an attorney in any contested matter in a court in a county where he or she serves on a judicial hearing officer panel for such court." 22 NYCRR 122.10(c).
In applying that section, the Committee stated in Opinion 89-63 (Vol. III) that a JHO may not participate as an attorney in any way, even as a mere referee or assisting attorney, and, therefore, may not receive a fee with respect to such matters. This prohibition applies even if the JHO is not actually serving in the particular court, at a particular point in time. Designation to the panel means serving on the panel even if at the time there is no pending assignment.
With respect to political activities, the Committee has previously concluded that a JHO, as an officer of a judicial system performing judicial functions, is subject to the restrictions and prohibitions of section 100.5 of the Rules Governing Judicial Conduct. See, Opinion 94-44 (Vol. XII).