Can administrative law judges serve as arbitrators in outside proceedings, given that the Code of Judicial Conduct bars full-time judges from acting as arbitrators?

Plain-English summary

Administrative law judges (ALJs) at the Public Employment Relations Board asked whether they could serve as arbitrators in proceedings before the American Arbitration Association (unrelated to their official duties) and before the Waterfront Commission (treated as part of their expanded official duties). The analysis turned on whether the Code of Judicial Conduct (CJC) applies in all its particulars to ALJs.

Canon 5E of the CJC states that a judge should not act as an arbitrator or mediator, and the CJC's Compliance Section makes that bar applicable to full-time judges, defining "judge" to include officers of a judicial system performing judicial functions. The committee noted that ethics committees have extended the CJC's principles to administrative agency personnel performing quasi-judicial functions, often through Canons 8 and 9 of the lawyers' Code, and that it usually makes no practical difference whether one applies the CJC directly or by analogy. Beyond those areas of common concern (political activity, partiality, conflicts), the committee said it makes no sense to subject administrative personnel to the full rigor of every CJC provision, especially those (like Canon 5E) written for full-time judges.

The committee reasoned that agencies differ widely in structure and in their need to use staff for arbitration or mediation, and a single inflexible rule like Canon 5E could disable an agency from fulfilling its purpose with no offsetting benefit. It observed that even trial judges routinely mediate the disputes assigned to them; Canon 5E bars only going outside official duties to arbitrate elsewhere, and only for full-time judges. The key issue, the committee held, is the relationship between the agency and the forum: if a matter beyond the ALJ's official duties is likely to come back to the agency for further adjudication or review, the ALJ should not take it; if the arbitration is incident to official duties, the agency should set the terms. The committee concluded Canon 5E should not be applied to the PERB ALJs, and that whether to prohibit such service is for each agency to resolve. The question was answered in the affirmative, subject to those qualifications.

Currency note

This opinion was issued in 1988, under New York's former Code of Professional Responsibility and the then-current Code of Judicial Conduct. New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009, and judicial conduct is now governed by the Rules Governing Judicial Conduct (22 NYCRR Part 100). 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 an administrative law judge serve as an arbitrator outside the agency?

A: Often yes. The committee held that the CJC's flat bar on judges acting as arbitrators should not be applied rigidly to ALJs, who may serve where the matter is unlikely to come back to their own agency for review.

Q: Who decides whether an ALJ may arbitrate?

A: The agency, ordinarily. The committee held that whether to prohibit staff from arbitrating or mediating is best resolved by each agency, consistent with substantive law and the agency's needs.

Q: When should an ALJ decline an outside arbitration?

A: When the matter could return to the agency. The committee held that if a matter beyond the ALJ's official duties is likely to come back to the agency for further adjudication or review, the ALJ should not undertake it.

Background and rules framework

The opinion interpreted CJC Canon 5E (the bar on a judge acting as arbitrator or mediator, applicable to full-time judges) in light of Canons 8 and 9 of the lawyers' Code, and declined to apply Canon 5E rigidly to administrative agency personnel. The closest current Model Rule analogue is Rule 2.4 (a lawyer serving as a third-party neutral), along with Rule 8.2(b) for judicial-conduct compliance by lawyers in judicial roles.

Citations and references

Rules of Professional Conduct:

• MR 2.4 (lawyer serving as a third-party neutral, including as arbitrator)
• MR 8.2(b) (lawyer who is a candidate for judicial office must comply with the applicable Code of Judicial Conduct)
• NY Canon 8; Canon 9; CJC Canon 5E

Other opinions cited:

• N.Y. State 365 (1974); N.Y. State 337 (1974); N.Y. State 327 (1974); ABA Informal Op. 1522 (1986): extending judicial-conduct principles to agency personnel performing quasi-judicial functions

See also

• NY State Bar Op. 617: ALJ disqualification after agency staff service
• NY State Bar Op. 642: The lawyer-as-witness rule in arbitration
• NY State Bar Op. 878: Lawyers serving as mediators

Source

• Landing page: https://nysba.org/opinion-594/