Joint Opinion 13-124/13-125/13-128/13-129
September 12, 2013
Digest: (1) A judge may not meet privately with the public defender concerning implementation of a new counsel-at-arraignment program for indigent defendants unless the district attorney consents, but may meet jointly with the public defender and the district attorney to discuss such matters, and may attend an open forum concerning implementation of the program, provided that the district attorney is expressly invited to attend. (2) A judge may speak ex parte with a defendant on topics relevant to determine the defendant’s financial eligibility for the counsel-at-arraignment program, where the program is, by its terms, restricted to indigent defendants. (3) Provided that the district attorney is on notice that the counsel-at-arraignment program is in effect, the district attorney’s failure to send, designate or otherwise reasonably make available a representative to attend or participate in such arraignments, may be treated as implied consent for the judge to conduct such arraignments ex parte. (4) A judge may not accede to a public defender’s request that the judge should contact the defender’s office for representation under the counsel-at-arraignment program only in cases where bail may be imposed and incarceration is a possibility.
Rules: CPL 530.20(2)(b); 170.10(3)(c); 22 NYCRR Part 100, Preamble; 22 NYCRR 100.2; 100.2(A), (B), (C); 100.3(B)(1), (4), (6); 100.3(B)(6)(d)-(e); Opinions 13-92; 13-32; 11-85; 10-61; 10-13; 09-178; 03-45; Joint Opinions 06-154/06-167; 01-100/01-101; Hurrell-Harring v State, 15 NY3d 8 (2010).
Four judges ask about their ethical obligations in light of a new program by which the State of New York has awarded grant money to twenty-five counties to provide indigent criminal defendants with counsel at their initial court appearances. The judges note that such arraignments may occur outside of normal court hours.1 Each judge states that the grant money is not sufficient to pay for legal representation of all indigent defendants at all arraignments throughout the judge’s county. Thus, the counsel-at-arraignment program will be implemented in selected town, village and city courts; and in some cases, the public defender’s office wishes to impose additional restrictions. Each judge raises questions about the propriety of his/her participation in the proposed local implementation of the program.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, for example, a judge must respect and comply with the law (see id.), must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]), must not convey or permit others to convey the impression that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]), and must not be swayed by partisan interests (see 22 NYCRR 100.3[B]). A judge must also accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law (see 22 NYCRR 100.3[B]). Thus, a judge is prohibited from initiating, permitting, or considering ex parte communications or other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding, unless an exception applies (id.). For example, a judge may, with the consent of the parties, confer separately with the parties and their lawyers on agreed-upon matters (see 22 NYCRR 100.3[B][d]), and may initiate or consider ex parte communications “when authorized by law” to do so (22 NYCRR 100.3[B][e]).
In Inquiry 13-125, a judge who is entitled to act in a representative capacity for certain other judges states that the local public defender wishes to meet with each affected judge in the county individually, without the district attorney present, to discuss implementation of the counsel-at-arraignment program. The judge is concerned that this proposed meeting might involve impermissible ex parte communications, as compared with alternative approaches such as “an open forum meeting” to which the public defender could invite the district attorney, the affected judges, and other interested parties. The judge asks whether it is ethically permissible to accept the public defender’s invitation to discuss implementation of the counsel-at-arraignment program in a private meeting without the district attorney also being invited to participate.
The Committee has recognized the danger that a judge’s impartiality will appear to be compromised when the circumstances of a proposed private meeting with the judge suggest that the meeting is essentially “an attempt to promote a particular agenda in connection with the judge’s judicial decision-making in certain matters that will come before the judge” (Opinion 11-85) or otherwise to impermissibly “influence the judge’s future [judicial] conduct” (Opinion 10-13). Thus, for example, the Committee has advised that a judge who has dismissed a number of parking tickets issued for illegal overnight parking must not meet privately with the Chief of Police and the Commissioner of Public Works for the municipality where he/she presides to discuss those decisions (see id.); that a recently elected judge must not meet privately with a local political party regarding the inner workings of the court, including its procedures, personnel or decisions (see Opinion 13-92); and that family court judges must not participate in regularly scheduled meetings with the County Department of Children, Youth and Families to discuss the substantive and procedural aspects of court operations with respect to how the court processes, schedules and resolves child abuse and neglect petitions (see Joint Opinion 06-154/06-167). To the extent that the public defender wishes to work with individual judges to develop policies, procedures or protocols to guide the court with respect to the counsel-at-arraignment program, the Committee believes that “working with representatives of only one side of an issue [to do so] could erode the public’s confidence in the impartiality and independence of the judiciary” (Opinion 10-13). Moreover, to the extent that there is any identifiable pending or impending arraignment before a judge at the time of a private meeting with the public defender, there is also a risk such a meeting would involve, or appear to involve, impermissible ex parte communications (cf. Opinion 13-32; see 22 NYCRR 100.3[B]).
Therefore, based on the facts set forth in Inquiry 13-125, the Committee concludes that the affected judges must not agree to meet with the public defender privately about the implementation of the counsel-at-arraignment program in future cases that will come before them, unless additional factors dispel the appearance of impropriety.
Under the circumstances presented, the Committee believes that the appearance of impropriety in the proposed private meetings will be dispelled if the district attorney consents to such meetings between an individual judge and the public defender relating to implementation of the program. In other words, should the district attorney, as the representative of the law enforcement and prosecutorial side of criminal proceedings, decide that the proposed meetings between individual judges and the public defender about implementation of the counsel-at-arraignment program are innocuous or desirable, the Committee believes that judges may rely on that determination. This is by analogy to the rule which permits judges, with the consent of the parties, to confer separately with the parties and their lawyers on agreed-upon matters (see 22 NYCRR 100.3[B][d]).2
Absent the district attorney’s consent to the proposed private meetings described in Inquiry 13-125, if a judge nonetheless wishes to discuss implementation of the counsel-at-arraignment program with the public defender, the judge has at least two options. First, the judge may meet jointly with the public defender and a representative from the district attorney’s office to discuss implementation of the counsel-at-arraignment program, as this ensures that both sides are represented. Second, in the alternative, the judge may attend an open forum concerning implementation of the counsel-at-arraignment program, provided that the district attorney is expressly invited to attend. The judge’s attendance at such an open forum is not rendered impermissible if the district attorney declines an express invitation to participate (cf. Opinion 03-45 [judge may participate in a domestic violence consortium which “includes representatives from all components of the community,” even though the public defender has declined an invitation to participate]).
In Inquiry 13-124, the judge emphasizes that only indigent defendants are eligible for the counsel-at-arraignment program, and thus the judge will need to speak to the defendant “about employment and financial status” to determine the defendant’s eligibility. Once the judge determines that a defendant is eligible, the judge must contact an attorney from a list of possible defense counsel, provide the attorney “either verbally or by fax the accusatory instrument”, and then provide the attorney with “an opportunity to speak to the defendant.” The judge notes that although he/she must speak directly with defense counsel in order to make the assignment under the program procedures, the Criminal Procedure Law does not require the judge to contact the district attorney’s office during an arraignment unless the defendant is charged with a felony.3 The judge asks whether he/she may participate in the program as described, and asks specifically if these anticipated communications with the defendant and the defense counsel as part of the program are ethically permissible, particularly if the district attorney is not present. Similarly, in Inquiry 13-128, a judge has learned that the public defender and conflict defender “plan to have attorneys present in court” pursuant to the counsel-at-arraignment program but that the district attorney “will not be represented at these arraignments.” Under these circumstances, the judge asks whether he/she may conduct arraignments when defense counsel is present pursuant to the counsel-at-arraignment program, but the district attorney is not present.
Initially, the Committee notes that when a defendant appears before a judge for arraignment, the judge’s proposed communications with the defendant about his/her financial status are indeed ex parte communications in an identifiable pending proceeding (see 22 NYCRR 100.3[B]; cf. Opinion 13-32). However, it is permissible for a judge to engage in ex parte communications when authorized by law to do so (see 22 NYCRR 100.3[B][e]). Here, the Criminal Procedure Law authorizes – and indeed apparently requires – a judge to speak ex parte with a defendant about topics relevant to determining the defendant’s financial eligibility for assigned counsel.4 Such communications are therefore permissible.5
Similarly, based on the facts provided by the inquirers, the Committee believes that the program itself contemplates certain very minimal ex parte communications between the judge and the defense attorney in order to determine the defense attorney’s availability pursuant to the program procedures and to provide the attorney a copy of the accusatory instrument by fax or by telephone.
Perhaps the most significant ethics question raised in Inquiries 13-124 and 13-128 is whether it is permissible to conduct the arraignment itself ex parte if defense counsel is present pursuant to the program, and the district attorney is not present.
The Committee is mindful of the possible constitutional dimensions of the counsel-at-arraignment program (see Hurrell-Harring v State, 15 NY3d 8 ; Joint Opinion 01-100/01-101 [“throughout the law runs the theme of judicial responsibility for guaranteeing the right to counsel on behalf of indigent defendants, from the appointment at arraignment through the appellate process”]), as well as the possibility that a local prosecutor might seek to maintain the status quo by declining to appear or otherwise participate in arraignments at which indigent defendants will be represented through the program.
Therefore, as long as the district attorney has notice of the counsel-at-arraignment program procedures and has a reasonable opportunity to appear or otherwise participate, the Committee concludes that a judge may conduct the arraignment after assigning counsel pursuant to the program, even if the district attorney either declines or fails to participate. In this regard, the Committee notes that a district attorney’s office doubtless has a number of options to provide for a representative to participate in arraignments on learning of the counsel-at-arraignment program procedures. For example, the district attorney might, as the public defender has done, designate one or more assistant district attorneys for the law enforcement officer accompanying the defendant to contact on a case-by-case basis; might authorize the accompanying law enforcement officer to serve as the prosecutor’s representative; or might waive the right to appear or participate. Because the Rules Governing Judicial Conduct are “rules of reason” (22 NYCRR Part 100, Preamble), the Committee believes that a judge would be justified in treating the district attorney’s failure to make any reasonable effort to provide for a representative to participate in or attend the arraignment as “consent” to conduct the arraignment ex parte with defense counsel assigned pursuant to the program (see 22 NYCRR 100.3[B][d]).
Therefore, provided that the district attorney’s office is on notice that the counsel-at-arraignment program is in effect, and that indigent defendants may now have counsel in instances where they previously did not, a judge may treat a district attorney’s failure to send or designate a representative to attend or participate in such arraignments, whether by telephone or otherwise, as implied consent by the district attorney for the judge to conduct such arraignments ex parte with the defense counsel assigned pursuant to the counsel-at-arraignment program, within the meaning of the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[B][d]).
Finally, in Inquiry 13-129, a judge states that the local public defender has asked that judges contact the defender’s office for representation under the counsel-at-arraignment program “only in cases where bail may be imposed and incarceration is a possibility.” The inquirer is concerned that this procedure would require the judge to “make a preliminary, pre-arraignment determination” about the likelihood of bail and incarceration, “based upon whatever information [may] be provided by a law enforcement officer when the officer contacts the judge for the arraignment.” Moreover, the judge notes that, if a judge makes a pre-arraignment determination that a defendant is not facing the possibility of incarceration, the proposed procedure will disqualify the defendant from the counsel-at-arraignment program even when an indigent defendant is facing consequences such as “suspension of a driver’s license pending prosecution” after an arrest for driving while under the influence, or even “removal from their home via the issuance of an order of protection.”6 The judge asks, in effect, whether the public defender’s proposed procedure is permissible.
In the Committee’s view, the public defender’s proposed procedure in Inquiry 13-129 is impermissible, as it effectively asks the judge to “pre-judge” the case by making determinations proper to a bail hearing at the pre-arraignment stage. Making the requested pre-judgments would, at the very least, create an appearance of impropriety and undermine public confidence in the judge’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]). Making such determinations at an inappropriately early stage could also create an appearance that the judge is not according the defendant “the right to be heard according to law” (22 NYCRR 100.3[B]), and could even cause the public to fear that the judge is performing his/her judicial duties based on bias or prejudice, rather than appropriate legal considerations (see 22 NYCRR 100.3[B]). The fact that a public defender, as opposed to a prosecutor, has suggested this procedure does not change the result.
1 One judge notes that in his/her jurisdiction neither the district attorney nor the public defender traditionally attends after-hours arraignments, so that often the only participants are the judge, law enforcement representatives and the defendant (cf. Hurrell-Harring v State, 15 NY3d 8, 19  [describing allegations of “a fairly common practice in [certain] counties of arraigning defendants without counsel”]).
2 Because the meeting has been proposed by the public defender, the “other side” is identifiable – it is the State of New York, whose known legal representative is the local prosecutor – even when there is no specific, identifiable pending or impending criminal proceeding.
3 Criminal Procedure Law §530.20(2)(b) (No local criminal court may order recognizance or bail with respect to a defendant charged with a felony unless and until: (i) The district attorney has been heard in the matter or, after knowledge or notice of the application and reasonable opportunity to be heard, has failed to appear at the proceeding or has otherwise waived his right to do so.
4 Criminal Procedure Law §170.10(3)(c) (The defendant has the right to the aid of counsel at the arraignment and at every subsequent stage of the action. If he appears upon such arraignment without counsel, he has the following rights: (c) To have counsel assigned by the court if he is financially unable to obtain the same; except that this paragraph does not apply where the accusatory instrument charges a traffic infraction or infractions only.
5 The Committee trusts that judges will not attempt to go beyond the narrow range of topics necessary to determine the defendant’s eligibility. The exception does not justify or warrant a discussion of the merits of the charges against the defendant or other issues beyond those reasonably necessary to determine the defendant’s financial eligibility for the counsel-at-arraignment program, and the judge should discourage any attempt by the defendant to raise or discuss such issues ex parte.
6 The Court of Appeals has stated that arraignment is a “critical stage” of criminal proceedings which may implicate a defendant’s “pretrial liberty” interests, “ability to defend against the charges,” and may also have “serious consequences, both direct and collateral” (Hurrell-Harring v State, 15 NY3d 8, 20 ).