Opinion 07-177

December 6, 2007

Digest:         (1) The Committee may not answer questions concerning the validity of a county law that would remove a judge’s authority to assign indigent defense services. (2) A judge who receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Code of Professional Responsibility shall take appropriate action. (3) A judge who is represented by the New York State Attorney General in an action filed against him/her is disqualified from presiding in cases where the assistant attorney general handling that action appears, but is not disqualified when other assistant attorneys general appear.

Rules:          22 NYCRR 100.3(D)(2); 101.1; Opinions 06-107; 98-14 (Vol. XVI); 89-54 (Vol. III).

Opinion:

         A judge asks a number of questions about his/her ability to affect the assignment of indigent defense services in light of a local law passed by the county legislature that implements a new system for administering a county-wide assigned counsel program. According to the inquiring judge, the law purports to eliminate a judge’s inherent power to determine when conflicts of interest exist that prevent a particular lawyer from representing a litigant and the judge’s power to assign counsel to indigent litigants. The judge questions the county legislature’s authority to enact such a law and has continued to assign counsel for indigent litigants as he/she had done before the law was enacted. Both the Public Defender and the attorney holding the newly created position of Conflict Defender, however, are resisting the judge’s efforts in this regard and are operating in accordance with the new county law. The judge advises that the Conflict Attorney - in resisting the judge’s assignments of indigent defense services, takes steps to interrupt court proceedings when he/she is not the attorney of record for a litigant, but would like to be - undermines the judge’s authority to run his/her court room. Also, said attorney has harassed the judge by filing frivolous Freedom of Information Law requests. The judge asks the following questions:

May I refuse to allow the Conflict Attorney to be heard when [he/she] appears in my courtroom and has not been assigned by a judge to represent a litigant?

May I refuse to allow the Conflict Attorney to sit at counsel table when [he/she] has not been assigned by a judge to represent a party?

May I preclude [him/her] from my courtroom, based upon [his/her] past disruptive behavior, when [he/she] has not been assigned to represent a litigant in a particular proceeding? If yes, is [he/she] entitled to an explanation or warning before doing so?

         The Committee is authorized to issue opinions to judges “...related to ethical conduct, proper execution of judicial duties, and possible conflicts between private interests and official duties” (22 NYCRR 101.1). The Committee, therefore, cannot respond to the inquiring judge’s questions concerning the validity of the law enacted by the county legislature that affects the process of assigning indigent defense services, as they are beyond the scope of the Committee’s jurisdiction.

         The Rules Governing Judicial Conduct do provide, however, that “a judge who receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Code of Professional Responsibility shall take appropriate action” (22 NYCRR 100.3[D][2]). A substantial violation is one that implicates the attorney’s honesty, trustworthiness, or fitness as a lawyer (see Opinions 89-54 [Vol. III]). In general, the question of whether there is a substantial likelihood that a substantial violation of the Code has been committed is a determination to be made by the judge (see Opinion 06-107). Once a judge has concluded that there has been a substantial violation, he/she is obligated to take appropriate action (see id.). Therefore, if the inquiring judge concludes that the Conflict Attorney’s actions constitute a substantial violation of the Code of Professional Responsibility, he/she should take whatever action he/she deems appropriate under the circumstances. This may include, inter alia, consulting with his/her administrative judge for assistance in resolving the problems resulting from enactment of the new county law.

         The judge also asks an unrelated question about the ethical propriety of presiding in a matter involving medicaid fraud where the New York State Attorney General is the prosecutor and also may represent the judge in lawsuits recently filed against him/her. In Opinion 98-14 (Vol. XVI), the Committee advised that a judge who is represented in a Federal District Court action by the New York State Attorney General is disqualified in cases where the assistant attorney general handling that matter appears before him/her, but is not disqualified when other assistant attorneys general appear. The same rule applies to the inquiring judge as well.