March 13, 2014
Digest: Under the circumstances presented, where the judge has made a good-faith interpretation of governing law concerning the appointment of counsel for indigent defendants, it would be inappropriate for the judge to defer to an inconsistent legal interpretation offered by another branch of government which would require the judge to participate in conduct the judge has concluded is unlawful.
Rules: 22 NYCRR 100.0(S); 100.2; 100.2(A); 100.3(B)(1); Opinions 11-87; 01-127; Joint Opinion 01-100/01-101; Marbury v Madison, 5 US 137 (1803).
The inquiring judge, who presides in certain matters in which counsel must be assigned for indigent defendants, states that a legislative body has appointed a particular individual to serve as Assigned Counsel Administrator in the judge’s locality when the public defender’s office has a conflict. However, under governing law, the judge has concluded that the individual who was appointed is not legally permitted to serve in this capacity.1 The legislature and the appointed individual disagree with the judge’s interpretation of the law, and the appointed individual has expressed his/her willingness or intention to fulfill the role of Assigned Counsel Administrator. The judge asks whether he/she may permit the individual to serve in this capacity under the circumstances presented.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must “respect and comply” with the law (id.) and “be faithful to the law and maintain professional competence in it” (22 NYCRR 100.3[B]).
In the Committee’s view, the inquiring judge has the inherent power to determine what law governs the judge’s exercise of his/her obligations to appoint counsel for indigent criminal defendants, as well as the inherent power to interpret the appropriate provisions of governing law (see generally Marbury v Madison, 5 US 137, 177  [“It is emphatically the province and duty of the judicial department to say what the law is.”]). Indeed, the judge’s obligations in this area may have constitutional dimensions (see 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”]).
Under the circumstances presented, where the inquiring judge has made a good-faith interpretation of governing law concerning the appointment of counsel for indigent defendants, the Committee believes it would be inappropriate for the judge to defer to an inconsistent legal interpretation offered by another branch of government which would require the judge to participate in conduct the judge has concluded is unlawful (see 22 NYCRR 100.0[S] [“An ‘independent’ judiciary is one free of outside influences or control.”]); Opinion 01-127 [noting that a town judge’s exercise of the powers and duties of the town clerk would “raise serious questions concerning the separation of powers and the independence of the judiciary”]).
The Committee notes that any questions concerning the correctness of the judge’s interpretation of the law, “to the extent unsettled, must be raised and addressed by persons with standing in the appropriate legal venue” (Opinion 11-87).
1 According to the inquiring judge, the appointment was made over the objections of the Chief Administrative Judge and counsel for the Unified Court System.