NEW YORK STATE BAR ASSOCIATIONCommittee on
Opinion #543 - 05/24/1982
Topic: Quasi-judicial hearing officer; limitations on practice
Digest: Restrictions on practice of Small Claims Real Property Tax
Assessment Hearing Officers same as those on judges
Code: EC 8-8; DR 5-105(D)
May an attorney who serves as a hearing officer in proceedings to
review small claims real property tax assessments (or lawyers in his
firm) represent private clients in such proceedings in the same
jurisdiction in which the hearing officer hears cases?
New York State, effective January 1, 1982, instituted a Special
Proceeding for Small Claims Real Property Tax Assessment Review which
will be heard by hearing officers. Panels of hearing officers, who need
be qualified as to the subject matter but who need not be attorneys,
will be established in each county of the state, and individual hearing
officers will review decisions of Boards of Assessment Review where the
amount in tax reduction cannot exceed $750. The decision of a hearing
officer is binding on the parties, who will be a property owner and the
local tax assessor, with review available through an Article 78
The Committee is mindful of the need for attorneys to be able to
participate in programs such as small claims real property tax
assessment reviews. In N.Y. State 380 (1975) we held that an attorney
who occasionally acts as an arbitrator in a small claims program of a
local court should not be held to the standards of a part-time judge and
could therefore practice before the same small claims part. However,
there is an important difference between an attorney acting as an
arbitrator where two private parties are involved and an attorney acting
as a hearing officer where one of the parties is always a governmental
In N.Y. State 365 (1974) we held that a lawyer who is a member of the
Administrative Appeals Board of the New York State Motor Vehicle
Department is subject to the same restrictions imposed on judges and
that neither the lawyer nor other lawyers in his firm could represent
private clients at a hearing conducted by a motor vehicle referee or in
any other action against the Department of Motor Vehicles. See also N.Y.
State 292 (1973) concerning a member of a zoning appeals board.
As a hearing officer, the attorney will be called upon to review
decisions of the local tax assessors and the Board of Assessment Review
and to render impartial judgments. As an attorney representing
private landowners, the attorney would be an advocate whose duty would
be to challenge such decisions in the non-impartial setting of an
adversary proceeding. Furthermore, the interests of private clients may
conflict with some of the decisions an impartial hearing officer may
reach. Even if such decisions are to possess no precedential value, the
integrity and impartiality of the assessment review procedures should
not be clouded by such dual-role inconsistencies. See EC 8-8.
If the hearing officer cannot accept professional employment, then
neither can a partner or associate in the same law firm. DR 5-105(D).
The restriction on the private practice of such hearing officer is
limited to the county or counties in which the attorney performs such
function and to appearances in tax assessment matters in such counties.
See N.Y. State 484 (1978).
For the reasons stated the question posed is answered in the