May 10, 2018
Digest: A part-time town justice may not accept a part-time counsel position in which he/she would be responsible for improving the delivery of legal services to indigent clients in the judge’s county and would report to the administrator of the county’s assigned counsel program.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(A); 100.3(B)(6); 100.4(B); 100.4(D)(1)(b)-(c); 100.6(B)(1)-(5); Opinions 17-141; 14-136; 09-178.
A part-time judge who assigns attorneys from the county’s assigned counsel program to cases in his/her court has been offered a part-time counsel position funded by indigent legal services, which would be responsible for helping improve the county’s assigned counsel program and reports to the program’s administrator. The judge would not be involved in approving vouchers or other administrative duties,1 would have no budgetary responsibilities, and would not review or assess the performance of any individual assigned counsel. The counsel’s sole responsibility is to improve the delivery of legal services to indigent clients. For example, the judge contemplates he/she would:
• establish resources for assigned counsel, including a “motion bank,” panels of attorneys with relevant training and experience or research skills, and a dedicated space for legal research;
• offer specialized training programs to assigned counsel, and mandate a certain number of credits for attorneys to remain in the program;
• create incentives for newly admitted attorneys to join and remain in the program; and
• visit courts throughout the county, to assess what resources are needed to improve the provision of legal services to indigent clients.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Moreover, a judge’s judicial duties take precedence over his/her extra-judicial activities (see 22 NYCRR 100.3[A]). Thus, a part-time judge’s ability to practice law and accept public employment is subject to certain limitations (see 22 NYCRR 100.6[B]-; 100.4[B]). Significantly, any such employment must not be incompatible with the judge’s judicial office nor may it interfere with judicial duties (see 22 NYCRR 100.6[B]). A judge must not convey or permit others to convey the impression that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]). A judge must not engage in financial and business dealings that “involve the judge with any business, organization or activity that ordinarily will come before the judge” (22 NYCRR 100.4[D][b]) or “involve the judge in frequent transactions” with lawyers “likely to come before the court on which the judge serves” (22 NYCRR 100.4[D][c]). A judge also may not initiate, permit or consider ex parte communications or consider other communications made to the judge outside the presence of the parties or their attorneys concerning a pending or impending case unless an exception applies (see 22 NYCRR 100.3[B]).
We have advised that a part-time judge may generally accept 18-B assignments (see Opinion 17-141) but must not serve as administrator of the assigned counsel program in the county where he/she presides (see Opinions 09-178; 17-141). Further, a part-time judge may not accept employment as a staff attorney with Legal Aid in the same county where the judge presides, where the proposed employment would unduly disrupt court operations (see Opinion 14-136).
We do not in any way criticize the outline of proposed actions. Clearly, the position is intended to improve the legal system and the administration of justice by improving the quality of legal services provided to indigent clients. However, we believe undertaking these high-level responsibilities for the assigned counsel’s office in his/her county is incompatible with the judge’s judicial office and would create an appearance of impropriety (cf. Opinions 09-178; 17-141; 14-136). For example, it could create an appearance of a special relationship between the judge and assigned counsel, which could be seen as affording such attorneys an inappropriate advantage before him/her (cf. 22 NYCRR 100.2[C]). It might also raise questions of bias or improper alignment with the defense (see Opinion 09-178), especially when assigned counsel is using a motion from the judge’s motion bank – or choosing not to. Moreover, the judge’s proposed paid employment with the local assigned counsel program would directly involve the judge with an “activity that ordinarily will come before the judge” (22 NYCRR 100.4[D][b]) and could potentially “involve the judge in frequent transactions” with lawyers “likely to come before the court on which the judge serves” (22 NYCRR 100.4[D][c]). In sum, the position seems likely to blur the lines between the judicial role and the assigned counsel role.
Accordingly, the proposed employment is impermissible.
1 In his/her judicial capacity, the judge reviews vouchers submitted by assigned counsel to verify the work done on the case, but final approval and payment are made by the administrator of the assigned counsel program.