Opinion 08-16

January 31, 2008

Digest:         A full-time judge may serve with other county officials on a screening panel that will interview applicants for appointment to the position of County Public Defender by the County Legislature.

Rules:          Jud. Law §35(1)(b); County Law § 722; CPL §§ 170.10, 180.10; 22 NYCRR 100.4(C)(2)(a), 612.0; Joint Opinion 01-100/01-101 (Vol. XX); Opinions 04-131; 89-77 (Vol. IV).

Opinion:

         A full-time judge asks if it is ethically permissible to serve with other county officials on a screening panel that will interview applicants for appointment to the position of County Public Defender by the County Legislature.

         Pursuant to the Rules Governing Judicial Conduct, “[a] full-time judge shall not accept appointment to a governmental committee or commission or other governmental position that is concerned with issues of fact or policy in matters other than the improvement of the law, the legal system or the administration of justice” (22 NYCRR 100.4[C][2][a]). This Committee previously has advised that a full-time judge may serve as a non-voting member of a committee to recommend candidates for appointment as Public Defender to the County Executive (see Opinion 89-77 [Vol. IV]). In addition, a full-time judge may serve on a panel that will review and recommend three persons for potential appointment to the position of administrator of the “conflict defender’s office” for the county executive’s final selection and appointment (see Opinion 04-131). A full-time judge also may write a letter expressing his/her views concerning the performance and professional conduct of attorneys affiliated with organizations seeking to contract with a municipality to provide legal representation for indigent criminal defendants, but may not recommend that the municipality contract with a particular organization (see Joint Opinion 01-100/01-101[Vol. XX]).

         In Opinion 01-100/01-101, the Committee noted the important role that judges play in ensuring adequate representation for indigent criminal defendants:

That there exists a constitutional obligation to provide competent counsel to represent indigent criminal defendants and that there are duties imposed upon the judiciary in the fulfillment of that obligation hardly require elaboration. We merely note that throughout the law runs the theme of judicial responsibility for guaranteeing the right to counsel on behalf of indigent defendants, from the appointment at arraignment through the appellate process. See e.g. Jud. Law §35(1)(b); County Law § 722; CPL §§ 170.10, 180.10. Fulfillment of that obligation entails, in the words of the Appellate Division, First Department, the setting forth of "rules and standards regulating the selection, designation, performance and professional conduct of . . . attorneys appointed to furnish representation for indigent defendants in criminal proceedings." 22 NYCRR 612.0.

         The judge in the present inquiry indicates that the screening panel will receive resumes, interview and screen candidates, and, thereafter, forward to the County Legislature the names of qualified candidates for the position of Public Defender. In the Committee’s view, a full-time judge’s service on such a panel is ethically permissible and consistent with a judge’s important role in ensuring the adequacy of indigent criminal defense services.