Can a lawyer who volunteers as a small-claims arbitrator also practice before that same small-claims part?

Plain-English summary

The committee was asked whether an attorney who occasionally serves as an arbitrator in a small claims part of a local court may practice before that same part. It described the small claims part as a well-established forum, generally conducted at night, where attorneys preside over consensual arbitration; a party is not compelled to arbitrate and may insist on a judge, and the volunteer arbitrators serve gratuitously, dispensing justice by settlement or final determination under relaxed rules of evidence.

The committee reasoned that, in that role, an attorney acts as an arbitrator and not as a judge, and should not be held to the standards of a part-time judge. It concluded that an attorney who serves gratuitously as an arbitrator in aid of the court, while earning his living practicing law in the courts of the State (including the small claims part where he occasionally sits), is not ethically barred from practicing in that part (citing ABA 161 (1936) and ABA Inf. 639 (1963)).

The committee attached a limiting condition drawn from ABA 161 (1936): the attorney should refrain from acting in one capacity in any matter in which he has acted, directly or indirectly, in the other, and should scrupulously avoid conduct by which he uses, or seems to use, his service as an arbitrator to further his professional success. It pointed to Canon 8, Canon 9, EC 8-8, EC 9-2, and EC 9-6 as the guidelines the small claims arbitrator should follow.

Currency note

This opinion was issued in 1975, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009; a lawyer's service as a third-party neutral is now addressed by Rule 2.4, and the conflicts arising from prior service as an arbitrator, mediator, or other adjudicative officer by Rule 1.12. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer who arbitrates small claims also take cases in that court?

A: Under this opinion, yes. The committee held that an attorney who serves gratuitously as a small-claims arbitrator may also practice before that same part.

Q: What is the limit on the dual role?

A: Per the opinion, he must never act in one capacity in a matter in which he acted in the other, and must avoid using, or appearing to use, his arbitral service to advance his practice.

Q: Is the arbitrator held to a judge's standard?

A: No. The committee said the attorney acts as an arbitrator, not a judge, and should not be held to the standards of a part-time judge.

Background and rules framework

The opinion applied Canon 8 and Canon 9 with EC 8-8, EC 9-2, and EC 9-6, treating the volunteer arbitrator's obligation as one of avoiding the appearance of using public service for private gain. The current New York analogues are Rule 2.4 (lawyer serving as a third-party neutral) and Rule 1.12 (former arbitrator, mediator, or other third-party neutral).

Citations and references

Rules of Professional Conduct:

• MR 1.12 (former judge, arbitrator, mediator, or other third-party neutral)
• MR 2.4 (lawyer serving as third-party neutral)
• NY Canon 8, 9; EC 8-8, 9-2, 9-6

Other opinions cited:

• ABA 161 (1936): an attorney serving in a quasi-judicial role may practice in the same court if he does not mix the roles in one matter
• ABA Inf. 639 (1963): same principle applied to part-time service

See also

• NY State Bar Op. 384: Practicing in a court where the lawyer's brother is a judge
• NY State Bar Op. 376: Law clerk holding other State employment
• NY State Bar Op. 409: Spouses as ADA and assistant public defender

Source

• Landing page: https://nysba.org/opinion-380/