September 12, 2013
Please Note: Although this opinion expressly modifies Opinions 09-88 and 06-64 with respect to the extent of a judge’s disqualification obligations, Opinion 18-145 follows the earlier rule set forth in Opinions 09-88 and 06-64. Accordingly, please review Opinion 18-145 and seek further guidance before relying on this opinion.
Digest: A part-time judge may accept appointment as an arbitrator in a mandatory arbitration program established pursuant to the Rules of the Chief Judge in another local court of broader jurisdiction.
Rules: Judiciary Law §16; 22 NYCRR Part 28; 28.2; 28.4; 28.12(a); 100.2; 100.2(A); 100.4(F); 100.6(B)(1); 100.6(B)(4); 101.1; Opinions 12-123; 09-88; 07-12; 06-64; 98-41 (Vol. XVI); 93-13 (Vol. X); 92-69 (Vol. IX); 91-03 (Vol. VII).
A part-time lawyer/judge asks whether he/she may serve as an arbitrator in a mandatory arbitration program established in another local court of broader jurisdiction pursuant to Part 28 of the Rules of the Chief Judge. Only a certain category of cases, based on the dollar amount of the damages claimed, are subject to mandatory arbitration.1 The judge explains that, on completion of each arbitration, “the awards are submitted along with any stipulations” to the arbitration office of the court that established the arbitration program. Parties who wish to challenge the award may request a trial de novo on paying a filing fee, and the matter will be heard by the court that established the arbitration program. Although arbitrators are compensated, they receive only a flat fee, less than $150 per case, “without any provision for additional compensation based upon additional time or efforts expended.”
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A part-time judge may accept public or private employment if it 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]). 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]; Opinion 92-69 [Vol. IX]).
Of course, a part-time judge may not serve as an arbitrator in cases originating in his/her own court (see Judiciary Law §16; cf. Opinion 91-03 [Vol. VII] [judge may not serve as a mediator with an agency to which the judge refers cases]) or in cases pending before any judge in his/her court (see Judiciary Law §16; Opinion 09-88) or in cases otherwise subject to review, approval, or appeal in the judge’s court, as this could create an appearance of impropriety or conflict with the judge’s judicial duties (see 22 NYCRR 100.2; 100.6[B]; Opinion 07-12 [duties of Small Claims arbitrator would conflict with judicial duties if judge presides in an Appellate Term that hears appeals of decisions by volunteer Small Claims arbitrators]; 98-41 [Vol. XVI] [town justice may preside as an arbitrator/hearing officer in a disciplinary hearing against a village police officer of a village located outside the town in which the judge presides]; cf. Opinion 12-123 [“the Committee sees no reason to assume that performing quasi-judicial duties on behalf of the Unified Court System in two different capacities (such as JHO and special referee) would inherently conflict or be ethically incompatible, as neither position is subject to the other’s jurisdiction, review, or approval”]).
However, a part-time judge may serve as a mediator or arbitrator for an alternative dispute resolution firm or program when the judge’s court either has no jurisdiction to refer cases to such firm or agency or never would refer cases to such firm or agency (see Opinions 06-64; 93-13 [Vol.X]). And, even when the judge may refer cases to a firm or agency for mediation, the Committee has advised that the judge may serve as a mediator where the mediation program charges no fee for its services and the judge volunteers his/her services (see Opinion 09-88).
The judge in the present inquiry proposes to serve as an arbitrator for a court that has established a mandatory arbitration system pursuant to Part 28 of the Rules of the Chief Judge. According to Part 28, only certain cases originating in the court are eligible to be heard and decided by a panel of arbitrators (see 22 NYCRR 28.2[b]). There is no provision in Part 28 that authorizes the inquiring judge to refer cases from his/her court to a Part 28 mandatory arbitration program (see 22 NYCRR 28.2). Nor are the arbitration awards reached in a Part 28 mandatory arbitration program subject to review, approval or appeal in the inquiring judge’s court (see 22 NYCRR 28.12[a] [demand may be made by any party not in default for a trial de novo in the court where the action was commenced or, if the action was transferred, to the referee court]). Finally, the Committee also notes that Part 28 does not preclude part-time judges from appointment as arbitrators (see 22 NYCRR 28.4 [discussing selection and eligibility of arbitrators]). Accordingly, as long as it is lawful for the inquiring judge to accept appointment as an arbitrator, a question on which the Committee cannot comment (see 22 NYCRR 101.1), it is ethically permissible to do so.
The judge must disqualify him/herself in any case that comes before the judge’s in his/her judicial capacity that involves the same parties and facts that are or were involved in an arbitration in which the judge presided.
Opinions 09-88 and 06-64 are modified to the extent they require disqualification in any case where the parties to an arbitration in which the judge presided subsequently appear before the judge.
1 The Committee notes that the judge presides in a court of more limited jurisdiction than the court that has established the arbitration program.