Joint Opinion:

December 13, 2001

Digest:  A judge may write a letter expressing his or her views concerning the performance and professional conduct of attorneys affiliated with organizations that are seeking to enter into a contract with a municipality for the providing of legal representation for indigent criminal defendants, but not as to whether the organization's bid should be accepted or a particular contract entered into between the municipality and the organization.

Rule: Jud. Law § 35(1)(b); County Law § 722; CPL §170.10; 180.10; 22 NYCRR 100.2(C); 612.0;
           Opinion 91-59 (Vol. VII).


            Two judges inquire of the Committee concerning the appropriate role of judges in the process whereby organizations that provide representation for indigent criminal defendants seek to enter into contracts with the City of New York for the providing of such services. As stated by the inquirers, New York City has instituted a new procedure in which provider organizations are required to submit bids. A number of organizations presently providing legal representation for indigent criminal defendants wish to attach to their applications "letters of support" from judges. The inquirers ask whether they may write letters of support and, if so, the limitations, if any, on the content of such letters.

            What is primarily at issue in both inquiries is the scope of section 100.2(C) of the Rules Governing Judicial Conduct, which provides, in part, that "A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others . . . " 22 NYCRR 100.2(C). The Committee has considered that provision in relation to references and recommendations in a variety of contexts. In particular, the Committee in Opinion 91-59 (Vol. VII) advised that a judge should not provide letters of reference in advance to law firms that were seeking to enter into agreements to represent a municipal health and hospitals corporation in the defense of medical malpractice law suits, but that such letters could be provided if the prospective client, i.e. the municipal hospital system, sought such letters directly from a judge.

            While seemingly apposite, we are of the view that Opinion 91-59 (Vol. VII) is not controlling in the present instance. For there is a vast difference between the role of the judiciary in administering medical malpractice litigation and in the overseeing of criminal proceedings. And that difference is one of constitutional dimension, which includes a requirement of assuring the adequacy of legal representation of indigent defendants. That there exists a constitutional obligation to provide competent counsel to represent indigent criminal defendants and that there are duties imposed upon the judiciary in the fulfillment of that obligation hardly require elaboration. We merely note that 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. See e.g. Jud. Law §35(1)(b); County Law § 722; CPL §§ 170.10, 180.10. Fulfillment of that obligation entails, in the words of the Appellate Division, First Department, the setting forth of "rules and standards regulating the selection, designation, performance and professional conduct of . . . attorneys appointed to furnish representation for indigent defendants in criminal proceedings." 22 NYCRR 612.0.

            In light of that collective responsibility for the scrutiny and evaluation of appointed counsel, it follows, in our opinion, that individual members of the judiciary may properly express their views concerning the performance and professional conduct of attorneys who are affiliated with organizations that represent indigent criminal defendants. Such views must be the product of the judge's personal observation and experience with the organization and its attorneys, and must be limited to questions of performance and professional conduct.

            Thus, a judge should not recommend that an organization's bid to be designated a provider should be accepted or that a proposed contract should be entered into between the City and the organization, given the lack of personal knowledge or expertise concerning the details of any proposal, or of fiscal considerations or of any other factor relevant to the awarding of a particular contract.

        Moreover, we note that some organizations have provided form letters for judges to execute to be included as part of the applications. A judge should not sign such a letter. First-hand knowledge and personal judgment are what a judge should be expected to provide, the basis and details of which are a matter of individual observation and experience that should be expressed individually.