Digest: Judges may participate in an agreement between the county and the Public Defender's Office which administers the Assigned Counsel Plan, authorizing the assignment of legal counsel to be repaid at assigned counsel rates for persons who, although not indigent pursuant to the income eligibility guidelines for the Assigned Counsel Program, are nonetheless unable to afford counsel.

Rule: County Law § 722-d; 22 NYCRR 100.2.

Opinion:

        Two Family Court judges inquire whether, in light of the 2001 Report of the Commission on Judicial Conduct, judges must terminate the practice of assigning counsel to persons who, although not "indigent" pursuant to the income eligibility guidelines of the county's Assigned Counsel Plan, have incomes very close to the guidelines, and ordering that they repay the county at the assigned counsel rates.

        The 2001 Report of the Commission on Judicial Conduct refers to a judge who required indigent defendants to pay for their assigned counsel by performing community service, notwithstanding the warnings of both prosecuting and defense attorneys that such a procedure was improper.

        The 2001 Report also contains a Commentary on The Need for Statewide Guidelines on Eligibility for Assigned Counsel. The Commentary discusses the judicial obligation to assign counsel to the indigent, and points out that there are disparate practices throughout New York State with respect to the assignment of counsel to the indigent. Eligibility standards vary from county to county as do the means by which eligibility determinations are made. Some counties require indigent defendants to pay their court assigned counsel for legal services rendered; other counties have eligibility applications that specifically require the applicant to agree to repay the county for money expended on the applicant's behalf during the course of the defense. The Commission asserts that such practices seem punitive and are sometimes so open-ended as to intimidate defendants, thereby contravening the spirit and letter of the Right to Counsel Law.

        The facts in the matter cited by the Commission are clearly distinguishable from the facts and circumstances contained in the inquiry herein. The judge in that matter had required an indigent defendant to pay for legal services that the defendant was otherwise legally entitled to receive at no charge. Imposing payment, regardless of its form, for services that must be provided at no charge is punitive and thereby contravenes the spirit of the Right to Counsel Law.

        Conversely, the persons referred to in the inquiry before us are "almost indigent" and as such do not qualify for legal representation at no charge. Recognizing that many people come within the "almost indigent" category while at the same time desiring to fulfill the legal obligation to provide legal services to those who cannot afford counsel, the county and the Public Defender's Office, which administers the Assigned Counsel Plan, have agreed to make special financial arrangements with the "almost indigent" clients. Such an agreement enables the county to comply with its obligation to provide legal representation for those who are not fully able to afford counsel; fulfills the spirit of the Right to Counsel Law; and furthers the interest of justice.

        Section 722-d of article 18-B of the County Law provides that: "Whenever it appears that the defendant is financially able to obtain counsel or to make partial payment for the representation or other services, counsel may report this fact to the court and the court may terminate the assignment of counsel or authorize payment, as the interests of justice may dictate, to the public defender, private legal aid bureau or society, private attorney, or otherwise." Accordingly, it follows, in our opinion, that based upon the facts before us, there is no ethical prohibition preventing a judge, in the exercise of discretion and in the interests of justice, from assigning counsel to be repaid at assigned counsel rates in those instances where the defendant would otherwise not qualify for treatment as an indigent defendant. A judge who acts in this manner is not committing any ethical impropriety. 22 NYCRR 100.2.