Opinion 23-64
June 15, 2023
Digest: A full-time judge may not participate in a local bar association’s phone bank event where members of the public call in with legal questions.
Rules: 22 NYCRR 100.0(V); 100.2; 100.2(A); 100.2(C); 100.3(B)(6); 100.3(B)(8); 100.4(G); Opinions 22-56/22-67; 18-114; 18-40; 17-30; 08-192; 91-121.
Opinion:
Before assuming the bench, the inquiring full-time judge participated in a local bar association event where volunteer attorneys staff a phone bank for an hour or two and members of the public are invited to call in with legal questions. Most calls relate to property matters and last approximately 3-4 minutes. Participating attorneys are instructed not to give legal advice during the calls but must instead direct callers to resources such as local representatives’ offices, small claims court, and the Legal Aid Society. A local media outlet covers the event “live” and interviews volunteers about the subject matter of the calls, the call volume, and why they are participating. Consistent with the organizers’ views, the media outlet emphasizes the event is “for educational and informational purposes only” and does not establish any attorney/client privilege. The judge considers the event an important public service and asks if it is ethically permissible to participate in the event and a media interview.
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 not lend the prestige of judicial office to advance any private interests and shall not convey or permit others to convey that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]). A judge must not “initiate, permit, or consider ex parte communications” unless an exception applies (22 NYCRR 100.3[B][6]) and must not make any public comment about a pending or “reasonably foreseeable” proceeding in “any court within the United States or its territories” (22 NYCRR 100.3[B][8]; 100.0[V] [defining the term “impending proceeding”]). A full-time judge may not engage in the practice of law (see 22 NYCRR 100.4[G]).
Judges may take steps to help make legal assistance more readily available to the public, where consistent with the Rules Governing Judicial Conduct. For example, a judge may serve on the board of directors of a legal referral project of a local bar association (see Opinion 91-121) or on the board of a county’s assigned counsel program, where the program does not engage in litigation but instead contracts with private attorneys to undertake the representations (see Opinion 18-40). A judge may participate in a pro bono project by announcing at the beginning of the court’s calendar “that volunteer attorneys are available in the courthouse to consult with and to represent tenants involved in pending summary proceedings,” with certain disclaimers to avoid the appearance of an official recommendation or endorsement (Opinion 08-192). Likewise, a judge also may make available a directory of attorneys who are on the assigned counsel panel and are willing to represent litigants on a sliding fee scale, with similar disclaimers (see Opinion 18-114). More recently, modifying and clarifying prior opinions, we said a judge may personally request pro bono assistance for an unrepresented litigant, provided the judge avoids undue pressure or coercion (see Opinion 22-56/22-67).
In Opinion 17-30, we addressed “whether part-time judges may organize a free community ‘Law Day’ event ... ‘where attorneys from the local area would volunteer their time to provide to the public free 10-minute private consultations in their respective practice areas.’” Given the inquirer’s proposed role as an organizer of the event, we focused on avoiding even the appearance of favoritism (it was “open to all local attorneys who wish to volunteer”) or coercion (the judge must not “personally solicit attorneys” to provide these free legal consultations to the public). As before, we also said the judge “must not recommend any particular lawyer or law firm, and it must be clear that the court is not making any specific recommendation,” in order to avoid lending the prestige of judicial office to advance private interests (id.).
In contrast, the inquirer here is not a part-time attorney judge seeking merely to organize a pro bono legal consultation event. Rather, this is a full-time judge who wishes to participate in a phone bank where members of the public will call in with legal questions. Notwithstanding the judge’s intention to provide only referrals and no legal advice, we note that the typical call length of 3-4 minutes suggests that the callers will provide factual details about their legal problem or dispute. At the very least, the attorney volunteer must then exercise their legal judgment to ask clarifying questions that will identify the nature of the potential legal issues, and thus determine where to refer the caller.[1] In these circumstances, it will be difficult, if not impossible, for the inquiring full-time judge to avoid giving legal advice to some callers (see 22 NYCRR 100.4[G]). Moreover, it will inevitably create the appearance that the judge, in serving as a volunteer attorney, is providing legal advice to the public (see 22 NYCRR 100.2; cf. Opinion 91-121 [full-time judge may serve on the board of directors of a bar association legal referral project, where neither the organization nor its representatives provides direct legal services to individuals).
We also note that members of the public who call a legal phone bank to speak with volunteer attorneys are very likely to be sharing facts and issues pertinent to “impending proceedings,” i.e. court proceedings that are “reasonably foreseeable but [have] not yet been commenced” (22 NYCRR 100.0[V]). From this perspective, the volunteer phone bank environment is rife with opportunities for a full-time judge to run afoul of the ex parte communications rule and/or the public comment rule (see 22 NYCRR 100.3[B][6]; 100.3[B][8]). We can see no justification for the inquiring judge to voluntarily assume such risks here.
Accordingly, we conclude this judge may not participate in a local bar association’s phone bank event where members of the public call in with legal questions. The judge should neither answer phones as part of the phone bank nor participate in the concomitant media interviews.
[1] If answering these calls did not require the exercise of legal judgment, the phone bank could presumably be staffed with non-attorneys.