January 28, 2016
Digest: A judicial hearing officer (JHO), designated to the JHO panel for certain courts, may nonetheless prepare and argue appeals from decisions in those courts, subject to the limitations of Part 122.
Rules: Judiciary Law §§ 16; 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.6(A); Part 122; 122.5(c); 122.6(a); 122.10(a)-(d); Opinions 09-230; 07-180.
A judicial hearing officer (JHO) who is “certified to work in Supreme and Family Courts” in a particular county asks if he/she may “prepare and argue an appeal” from a case decided in one of those courts. The JHO will not “do private work in the courts to which I am certified,” but is unsure if that limitation applies to the practice of law in the Appellate Division, with respect to appeal of a case decided in Supreme or Family Court.
As a quasi-judicial official, a JHO must comply with the Rules Governing Judicial Conduct in performing his/her judicial functions and must also use such rules as guides to his/her other conduct “so far as practical and appropriate” (see 22 NYCRR 100.6[A]; Opinion 09-230). Like a judge, a JHO must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). However, a JHO may practice law, subject to the limitations set forth in Part 122 (see 22 NYCRR 122.10[a]-[d]). Of particular significance here, a JHO must not participate as an attorney in any matter in which he/she has participated as a judge or judicial hearing officer (see 22 NYCRR 122.10[a]) or in any contested matter in a court where he/she is designated to the JHO panel (see 22 NYCRR 122.10[c]).
The inquiring JHO, who is designated to the JHO panel for Supreme Court and Family Court in his/her county, is thus prohibited from practicing in those courts (see 22 NYCRR 122.10[c]). In Opinion 09-230, a JHO asked if he/she could “accept appeals from other courts,” i.e., appeals from courts in which he/she was not designated to the JHO panel. In the main body of the opinion, the Committee advised that a JHO:
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.
Here, the inquiring JHO raises squarely the question of whether it is permissible for a JHO to accept, complete, and perfect new or existing appeals from courts in which he/she is a designated JHO.
Significantly, Part 122 does not prohibit a JHO from practicing law in a matter “originating” in a court where he/she serves on a JHO panel (cf. Judiciary Law § 16 [“A judge shall not practice or act as an attorney or counselor in a court of which he is, or is entitled to act as a member, or in an action, claim, matter, motion or proceeding originating in that court.”] [emphasis added]).
Although Part 122 provides that a JHO panel may be convened “in and for an appellate division” to perform certain functions (22 NYCRR 122.5[c]), the inquiring JHO is not on such a panel. Absent a specific conflict which would preclude the JHO from handling a particular appeal (see generally 22 NYCRR 122.10[a]-[d]), the Committee sees no inherent ethical impropriety if a JHO handles an appeal in a court where he/she is not designated to serve on the JHO panel, merely because the appeal is from a case decided by one of the JHO’s judicial colleagues in the Supreme or Family Court.1 Accordingly, the Committee concludes that a JHO, designated to the JHO panel for certain courts, may nonetheless prepare and argue appeals from decisions in those courts, subject to the limitations of Part 122, including the prohibition on participating as an attorney in any matter in which the JHO has participated as a judge or judicial hearing officer (see 22 NYCRR 122.10[a])
Prior opinions are hereby modified to the extent inconsistent with this opinion (see Opinion 09-230 [suggesting in the digest that a JHO may handle “appeals from other courts ... so long as he/she is not designated to the JHO panel in those courts”]).
1 Although the Committee cannot comment on the JHO’s ethical obligations as an attorney (see Judiciary Law § 212[l]), the Committee assumes the JHO will fully comply with those ethical obligations, even if he/she is arguing an appeal from the decision of a judge who has the power to appoint him/her as a JHO in other cases (see 22 NYCRR 122.6[a]).