Opinion 09-230

December 3, 2009

Please Note: Section 122.10© was amended in 2019. The section now reads as follows: “A judicial hearing officer shall not participate as an attorney or, unless appointed by the court on terms including receipt of compensation pursuant to section 122.8 of this Part, as a referee, mediator, or arbitrator, or similar officer, in any contested matter in a court in a county where he or she serves on a judicial hearing officer panel for such court.” 

Note: To the extent that Opinion 09-230 suggests that a JHO may only handle appeals from courts where he/she is not designated to the JHO panel, it has been modified by Opinion 14-129(B).

Digest:        A judicial hearing officer (JHO) who is designated to the JHO panel for the Supreme Court in a particular county may not practice in that court, but may continue to accept, complete or perfect appeals from other courts in the same county so long as he/she is not designated to the JHO panel in those courts, and may continue to serve as a mediator in matrimonial matters so long as no party has commenced an action in a court where the JHO has been designated to the JHO panel.

Rules:         22 NYCRR 100.2; 100.2(A); 100.4(G); 100.6(A); 122.10(a)-(d); Opinions 07-180; 06-84.

Opinion:

         An attorney who recently was appointed a judicial hearing officer (JHO) for the Supreme Court in a particular county asks whether he/she may (1) complete and perfect appeals already assigned to him/her as a member of the assigned counsel panel; (2) remain on the assigned counsel panel and accept new appeals; (3) accept appeals from other courts; and (4) continue to be a mediator in matrimonial matters.

         As a quasi-judicial official, a JHO generally is subject to the Rules Governing Judicial Conduct (see 22 NYCRR 100.6[A]; Opinion 07-180). Among other things, he/she must avoid impropriety and the appearance of impropriety in all of his/her activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]).

         Unlike a full-time judge (see 22 NYCRR 100.4[G]), a JHO may practice law, subject to the limitations set forth in 22 NYCRR Part 122 (see 22 NYCRR 122.10[a] - [d]), including a prohibition against participating as an attorney in any contested matter in a court where he/she is designated to the JHO panel (see 22 NYCRR 122.10[c]). The Committee previously has advised that this provision does not preclude a JHO from appearing in other courts in the same county so long as he/she is not designated to the JHO panel in those other courts (see Opinion 07-180).

         Therefore, the inquiring JHO, who is designated to the JHO panel for the Supreme Court in a particular county only, is prohibited from practicing in that court (see 22 NYCRR 122.10[c]). However, he/she may continue to practice law in other courts in the same county to which he/she is not designated to serve as a JHO, but only before the judges who preside in those courts and not before another JHO (see 22 NYCRR 122.10[c]-[d]; Opinion 07-180), and may accept, complete and perfect new or existing appeals from such courts.

         Similarly, the inquiring JHO may continue to serve as a mediator in matrimonial matters, as long as no party to the mediation has commenced an action in a court in which the judicial hearing officer has been designated to the JHO panel (see 22 NYCRR 122.10[c]; Opinion 06-84).