April 23, 2015
Digest: A judicial hearing officer may not participate in a bar association’s pro bono help desk at a court from which he/she accepts judicial hearing officer assignments.
Rules: 22 NYCRR 100.2; 100.2(A); 100.4(A)(3); 100.4(G); 100.6(A); 100.6(B)(1); 122.10(a)-(d); 22 NYCRR pt 1200, Rule 6.5; Opinions 14-129(A); 09-230; 00-117; 89-63.
A judicial hearing officer (“JHO”) who is assigned to the JHO panel for the Family Court in a particular county asks whether he/she may participate in a pro bono project sponsored by that county’s bar association. The JHO would volunteer at the help desk at Family Court to “advise members of the public concerning general Family Law matters.” The JHO states that the pro bono help desk operates over the lunch hour and may involve answering questions such as whether Family Court is the proper forum for a particular issue, how to fill out the appropriate petition, how to respond to petitions, and other related matters. It appears that volunteer attorneys at the bar association’s help desk provide short-term limited legal services to clients, without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter (see generally 22 NYCRR pt 1200, Rule 6.5). The JHO notes that the representation concludes at the end of the help desk session and suggests that, because all parties and attorneys must sign a stipulation in order for the JHO to receive a reference to hear a case, it is unlikely that the JHO will inadvertently hear a case in which he/she previously participated as a pro bono help desk attorney.
As a quasi-judicial official, a JHO must comply with the Rules Governing Judicial Conduct in the performance of his/her judicial functions within the judicial system, and must otherwise “so far as practical and appropriate” use the Rules as guides to his/her conduct (22 NYCRR 100.6[A]). Therefore, a JHO 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]). Although a full-time judge may not practice law (see 22 NYCRR 100.4[G]), a JHO may do so subject to certain limitations (see e.g. Opinions 09-230; 00-117; 89-63; 22 NYCRR 100.6[B]; 122.10[a]-[d]). For example, a JHO “shall not participate 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]) and “shall not preside over any matter in which he or she has represented any party or any witness in connection with that matter” (22 NYCRR 122.10[a]). Further, a JHO’s extra-judicial activities must not interfere with the proper performance of his/her JHO duties (22 NYCRR 100.4[A]; Opinion 14-129[A]).
It seems likely that most, if not all, litigants who approach the pro bono help desk in Family Court will be seeking advice relating to contested matters in that court. In such instances, the JHO may not participate, because he/she may not serve as an attorney “in any contested matter” in a court from which he/she accepts judicial hearing officer assignments (22 NYCRR 122.10[c]). Moreover, under the circumstances presented, if the inquiring JHO were to provide even limited pro bono legal services to individuals at a court from which he/she accepts JHO assignments, such representation could interfere with the JHO’s performance of his/her quasi-judicial duties because the JHO may not thereafter preside over any matter in which one of his/her help desk clients appears as a party or witness (22 NYCRR 122.10[a]).
Because it would be difficult, if not impossible, for a JHO to serve at the volunteer help desk at a court from which he/she accepts judicial hearing officer assignments without either advising a client in a contested matter (22 NYCRR 122.10[c]) or conflicting him/herself from service as a JHO after having counseled a help desk client (22 NYCRR 100.4[A]; 122.10[a]), the Committee concludes that the inquiring JHO may not participate in the help desk as described.