Opinion 08-215

December 4, 2008

Digest:         A part-time judge may serve on a county government-sponsored committee to explore the issue of an Assigned Counsel system, Public Defender system or hybrid system to represent indigent defendants in the county.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(A)(1) - (3); 100.4 (C)(2)(a); 100.6(B)(1); Opinions 07-124; Joint Opinion 01-100/01-101.

Opinion:

         A part-time judge advises that the county where he/she presides is exploring various ways of providing assigned counsel services. He/she further says that the county public safety committee formed a subcommittee to advise the committee and/or the county legislature on the subject of assigned counsel. On behalf of his/her county judges association, the judge asks whether it is ethically permissible to serve on the subcommittee.

         A judge must avoid impropriety and the appearance of impropriety (see 22 NYCRR 100.2), and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A judge may engage in extra-judicial activities that do not (1) cast reasonable doubt on the judge's capacity to act impartially, (2) detract from the dignity of judicial office, or (3) interfere with the proper performance of judicial duties and are not incompatible with judicial office (see 22 NYCRR 100.4[A] [1] - [3]). A judge may accept appointment to a governmental committee that is concerned with matters involving the improvement of the law, the legal system, or the administration of justice (see 22 NYCRR 100.4[C][2][a]; 100.6[B][1]).

         The Committee previously has advised that town and village justices may, at the invitation of county legislators, publicly address the county legislature about assignments of indigent defense services made by the Public Defender's office (see Opinion 07-124). The Committee also has 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 (see Joint Opinion 01-100/01-101). In each opinion, the Committee noted that the judiciary is responsible to protect and ensure the constitutional right of indigent criminal defendants to competent representation. Moreover, judges are uniquely positioned to give valuable input on such issues.

         For the same reasons, a judge may serve on a public safety committee subcommittee and advise the committee and/or the county legislature on the subject of assigned counsel. However, the judge must refrain from commenting about pending or impending cases and must consider whether any comments or observations the judge does make could require him/her to exercise recusal from any future cases involving an indigent defense services provider (see Opinion 07-124).