Opinion 07-124

September 6, 2007

Digest:         Town and village justices may, at the invitation of county legislators, publicly address the County Legislature about the assignment of indigent defense services by the County Public Defenders Office, but must refrain from commenting about pending or impending cases, and must consider whether recusal could be required in future cases of the Public Defender’s office.

Rules:          22 NYCRR 100.3(B)(8); Joint Opinion 01-100/01-101.

Opinion:

         The President of a County Magistrates Association asks if member town and village justices may publicly address the County Legislature at its regular meeting about indigent defense services provided by the County Public Defender. The judge states that some County Legislators have raised questions about the cost of the County’s Assigned Counsel program and have decided to investigate the Public Defender’s office. Some county legislators have invited the judges to attend a regular meeting of the County Legislature to express their views about the indigent defense services that the County Public Defender provides.

         In Joint Opinion 01-100/01-101, the Committee advised that a judge may write a letter expressing his/her views concerning the performance and professional conduct of attorneys affiliated with organizations seeking to enter contracts with a municipality to provide legal representation for indigent criminal defendants. The Committee concluded that individual members of the judiciary may express their views about the performance and professional conduct of attorneys affiliated with organizations that represent indigent criminal defendants, as the judiciary is responsible for ensuring the constitutional right of indigent criminal defendants to competent representation (see Joint Opinion 01-100/01-101).

         For the same reason, it is the Committee’s view that town and village justices who are members of a County Magistrates Association, at the invitation of county legislators, may publicly address the County Legislature about the indigent defense services the County Public Defender provides. In this regard, the Committee cautions that the town and village justices who address the County Legislature may not comment about pending or impending cases (see 22 NYCRR 100.3[B][8]). They may, however, refer to non-substantive facts of record in a particular case; for example, they may acknowledge that the Public Defender’s office represented a defendant in a particular case. We also caution against mentioning any substantive facts or any contested procedural facts when addressing the County Legislature, and they must consider whether any comments or observations they do make could require them to exercise recusal from any future cases involving the Public Defender’s office.