Can a full-time prosecutor accept appointment to a court referee panel and oversee foreclosure proceedings?
NY State Bar Ethics Opinion 893: Prosecutor as Foreclosure Referee
Short answer: A full-time Assistant District Attorney may seek and accept appointment to a court foreclosure-referee panel and oversee foreclosures, because no per se rule prohibits it, provided the prosecutor avoids Rule 1.7(a)(2) conflicts in particular situations and heeds the Rule 1.12 restrictions that may follow an appointment.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
New York courts appoint referees from panels to compute the value of foreclosed property and sell it at auction, for statutory fees (CPLR §§ 4301, 1351(1), 8003(b)). Appointment is discretionary with individual judges and is not screened by the Office of Court Administration. The committee was asked whether a full-time Assistant District Attorney may seek and accept such an appointment (paragraphs 1 through 3).
The committee found no per se bar in the Rules of Professional Conduct, while cautioning that other authorities outside its jurisdiction, such as county law or a particular District Attorney's office policy, might prohibit it. The operative ethical constraint is the conflicts rule. Under Rule 1.7(a)(2), the prosecutor must avoid situations where his interest in being a referee would create a significant risk to his professional judgment. Because appointment is at a judge's discretion, the committee said the prosecutor should consider whether to accept an assignment from, or seek a panel that routinely draws assignments from, a judge before whom he frequently appears as a prosecutor (paragraphs 4 through 6).
Conflicts must also be assessed for each particular foreclosure. The prosecutor should not serve as referee where a party to the foreclosure is being or is likely to be prosecuted by his office, and should weigh whether to serve where he previously participated in a criminal matter involving a party, considering the time elapsed, his involvement, and the party's role (defendant, witness, juror, or complainant). He should also weigh whether professional relationships with law-enforcement personnel involved in the foreclosure might affect his judgment (paragraph 7).
Finally, the committee noted that once the prosecutor accepts a referee appointment, Rule 1.12 may apply, because a referee is an "adjudicative officer" and "third-party neutral"; it urged the prosecutor to study Rule 1.12's later-employment restrictions, while limiting its holding to whether he may accept the appointment in the first place (paragraph 8).
In practice
The opinion holds that, under New York Rules 1.7 and 1.12 as they stood at the time, there is no categorical prohibition on a full-time prosecutor serving as a foreclosure referee, and the analysis is conflict-by-conflict. The committee identified the situations to watch under Rule 1.7(a)(2): accepting assignments from a judge before whom the prosecutor regularly appears, serving in a foreclosure involving a current or likely criminal defendant of his office, serving where he previously handled a criminal matter touching a party, and serving where law-enforcement colleagues are involved. It flagged, without deciding, that Rule 1.12 may restrict the prosecutor's later involvement in matters where he served as referee, since a referee is an adjudicative officer and third-party neutral. The committee also noted that county law or office policy outside the Rules could independently bar the appointment.
Common questions
Q: I'm a full-time ADA. Can I serve on a court's foreclosure-referee panel?
A: Yes. The committee found no per se rule barring it, subject to conflict analysis under Rule 1.7(a)(2) and to any restrictions outside the Rules, such as county law or your office's policy (paragraphs 4, 9).
Q: Can I take a referee assignment from a judge I appear before as a prosecutor?
A: The committee said you should consider whether that is appropriate, because the judge's discretion over appointments can create a Rule 1.7(a)(2) risk to your professional judgment (paragraph 6).
Q: Are there foreclosures I should not referee?
A: Yes. Do not serve where a party is being or is likely to be prosecuted by your office, and weigh serving where you previously handled a criminal matter involving a party or where law-enforcement colleagues are involved, based on factors like time elapsed and degree of involvement (paragraph 7).
Q: Does anything restrict me after I serve as a referee?
A: Possibly. The committee noted Rule 1.12 may limit later work because a referee is an adjudicative officer and third-party neutral, and urged study of that rule once you accept an appointment (paragraph 8).
Background and rules framework
The opinion interprets New York Rule 1.7(a)(2) and (b) (personal-interest conflicts and their cure) and Rule 1.12 (former adjudicative officers, arbitrators, mediators, and other third-party neutrals), which correspond to ABA Model Rules 1.7 and 1.12. It applies the referee appointment statutes (CPLR §§ 4301, 1351(1), 8003(b)) and Part 36 of the Rules of the Unified Court System as the factual backdrop, expressly declining to opine on county law or office policy.
Citations and references
Rules of Professional Conduct:
- MR 1.7 / NY Rule 1.7(a)(2), (b): personal-interest conflicts and their cure
- MR 1.12 / NY Rule 1.12 and Comment [1]: former adjudicative officer or third-party neutral
Statutes and rules:
- CPLR §§ 4301, 1351(1), 8003(b): referee appointment, powers, and fees
- Rules of the Unified Court System, Part 36 (Appointments)
Other opinions cited:
- N.Y. State 544 (1982); N.Y. State 800 (1986): conflicts arising from a government lawyer's relationships and prior involvement
See also
- NY State Bar Ethics Op. 900: Assistant County Attorney as Mediator
- NY State Bar Ethics Op. 1065: Part-Time Prosecutor's Firm Suing a Separate Village
- NY State Bar Ethics Op. 1064: Former Judge Conflict and Firm Screening
Source
- Landing page: https://nysba.org/ethics-opinion-893/