September 7, 2017
Digest: A judge presiding over a civil matter involving allegations of sexual abuse committed by a non-party minor should not solicit pro bono representation for the non-party minor and should not direct the parties’ attorneys to solicit such representation.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(7); Opinions 09-68; 08-192; 02-80; 95-14/95-21; 93-51; 90-73.
A judge is presiding over a civil action seeking damages from a religious leader, a house of worship, and a religious body with which they are affiliated, based on their alleged negligence in permitting the religious leader’s minor child (a non-party) to abuse the plaintiff. The non-party minor was a party respondent in a Persons In Need of Supervision (PINS) proceeding in Family Court in connection with the alleged sexual abuse and placed under the supervision of the probation department. In the civil action, the plaintiff’s attorney now wishes to depose the non-party minor.
The judge and the parties’ attorneys believe the non-party minor should be represented by an attorney at the deposition to protect his/her Fifth Amendment right against self-incrimination. However, the judge has concluded the non-party minor has no statutory or constitutional right to counsel here. The judge asks if he/she may ethically contact legal services providers or law firms to solicit pro bono representation for the non-party minor or alternatively direct the attorneys appearing in the action to do so.
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 dispose of all judicial matters promptly, efficiently and fairly (see 22 NYCRR 100.3[B]) and must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]). Moreover, a judge must respect and comply with the law (see 22 NYCRR 100.2[A]).
We recognize that pro bono representation of indigent individuals can help improve the administration of justice by protecting important legal rights and facilitating the efficient and fair resolution of cases in our courts (cf. Opinion 09-68 [discussing court-sponsored programs intended to encourage attorneys to provide pro bono legal services]). Nevertheless, the Rules Governing Judicial Conduct and our prior opinions also reflect the paramount need for judges to remain fair and impartial, to maintain the appearance of impartiality at all times and to refrain from using judicial office to coerce attorneys to volunteer their services.
With regard to this last concern, we have advised that, while judges may solicit attorneys for participation in pro bono representation programs (see Opinion 90-73; 09-68), they must avoid both actual coercion and its appearance when making such solicitations (see Opinion 90-73). For example, a judge soliciting pro bono representation must not require attorneys to return forms indicating “whether they would accept or decline appointment” (Opinion 90-73). Instead, “the forms should be filled out only by those attorneys who agree to accept pro bono assignments,” and they “should be returned not to the judge, but to the clerk” (id.).
We have also addressed related concerns regarding the court’s use or support of pro bono legal service providers. For example, a judge may make available in his/her court a bar association directory or information about lawyers’ referral services, provided “the judge does not recommend the use of any particular lawyer or law firm, and it is clear that the court is not making an official recommendation” (Opinion 95-14/95-21; cf. Opinion 02-80 [judge may not provide an endorsement for use in the Court Appointed Special Advocates’ volunteer recruitment brochure]). Subject to the same limitations, an administrative judge may permit a pro bono local action committee to implement a pro bono project in a city court, where a judge will announce at the beginning of the court’s calendar that volunteer attorneys are available to consult with and represent tenants in pending summary proceedings (see Opinion 08-192), and a judge may permit a pro bono panel or group of volunteer attorneys to use the courthouse to aid unrepresented parties in civil cases (see Opinion 93-51).
Here, the judge proposes to do far more than merely soliciting attorneys for involvement in a legal services program. The judge would be making a direct, and arguably coercive, request for an attorney or organization to represent a particular individual without any recompense.1 Moreover, the judge’s actions would not, under the circumstances, be consistent with the mandates of fairness and impartiality required by the rules and fundamental to the courts’ functioning.
The judge has already expressed his/her concerns that the non-party minor’s Fifth Amendment right against self-incrimination might be impacted by a deposition in the civil case, and the non-party minor and his/her parent or guardian are presumably fully aware of the judge’s views that the minor urgently needs legal representation to protect those rights. The judge may also, if he/she wishes, make the non-party minor and his/her parent/guardian aware of the availability of pro bono legal services providers, lawyer referral services, and the like (see e.g. Opinion 95-14/95-21).
In no event should the judge contact a legal services provider or a law firm for the purpose of obtaining representation for the non-party minor. It is the role of the non-party minor and/or the minor’s parent or guardian in these circumstances to make decisions concerning representation; it is not the function of the court.
For the same reasons, the judge must not “direct” the parties’ attorneys to contact a legal services provider or law firm to obtain representation for the non-party. The court may, however, ask the parent or guardian of the non-party minor to do so.
1 If, as the judge believes, the non-party minor is not legally entitled to free legal services in the civil action, we assume that any attorney who undertakes the representation is unlikely to receive compensation for his/her time from any source.