September 6, 2018
Digest: A court may create and distribute a list of attorneys who are on the assigned counsel panel and are willing to represent litigants on a sliding fee scale, where the list contains a disclaimer that the court and its staff are not recommending any attorney.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); Opinions 17-30; 14-87; 09-02; 08-192; 07-41; 95-14/95-21.
As suggested by a court-sponsored advisory committee, Family Court staff have prepared a list or directory of attorneys on the local assigned counsel panel (18-B panel) who say they are willing to represent litigants on a sliding fee scale. The list is intended to help litigants “of modest income and not eligible for assigned counsel.” The list was printed, including the following disclaimer: “By providing this list to you, the Family Court is in no way recommending a particular attorney for you to choose, nor is any staff member able to recommend a specific attorney from the list.” A Family Court judge now asks if it is ethically permissible to make copies of this directory available to Family Court litigants, e.g. in court parts and petition rooms, and if it is appropriate to limit it to members of the assigned counsel panel.
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 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 may make available in court a bar association directory listing attorneys and the types of matters handled, provided the judge (a) does not recommend particular lawyers or law firms and (b) makes clear inclusion in the directory does not constitute an official recommendation by the court (see Opinions 08-192; 95-14/95-21). Likewise, a judge may distribute a list of organizations that provide legal services to domestic violence victims, only if he/she explains the list “does not constitute an official recommendation by the court” and does “not recommend any particular organization” (Opinion 09-02; see also Opinions 14-87 [list of addiction resources]; 07-41 [list of structured settlement brokers]).
Currently the list is limited to attorneys who have applied and been found qualified for the 18-B panel. This limitation is permissible, provided attorneys who wish to participate are also given the opportunity to apply for the 18-B panel and will be included if found qualified (cf. Opinion 17-30 [judge may participate in organizing a free community “Law Day” event which will be “open to all local attorneys who wish to volunteer” to provide free 10-minute private consultations to the public]).
Thus, we conclude the court may create and distribute a list of attorneys who have said they are willing to represent clients on a sliding fee scale and who have been screened to be included on the 18-B panel, provided the document makes clear the court and its staff are not recommending any specific attorneys.