Opinion 09-68

March 12, 2009

Digest:         A judge who serves on a court-sponsored pro bono action committee may sign formal or handwritten letters or notes of appreciation on behalf of the committee, using either court letterhead or committee letterhead, to attorneys who serve as volunteer pro bono advocates before other judges.

Rules:          22 NYCRR 100.2(A); 100.2(C); 100.3(B)(3); 100.3(B)(6); 100.3(B)(8); 100.4(C)(3)(b)(i) and (iii); Opinions 08-192; 97-14 (Vol. XV); 90-73 (Vol. V); 22 NYCRR part 1200, Rule 6.1 (eff. April 1, 2009).

Opinion:

         A full-time judge is participating in a court-sponsored initiative to organize committees of judges, private and government attorneys, not-for-profit legal services attorneys and law professors to encourage pro bono representation of indigent individuals. The committees recruit attorneys to accept pro bono referrals, provide free CLE-accredited training for volunteers, and host volunteer attorney recognition programs; there is no suggestion that any fund-raising will be involved. The judge asks whether he/she may personally thank attorneys who have accepted pro bono assignments under the program. The judge proposes to send handwritten or typed notes on the judge’s court stationery marked “Personal and Unofficial.” Alternatively, the judge proposes to send thank-you notes on the judicial district’s pro bono committee letterhead, with the judge’s signature “For the Committee.” The judge would only sign and send such thank-you notes to attorneys who handled pro bono matters before other judges (cf. 22 NYCRR 100.2[A]; 100.2[C]; 100.3[B][6]).

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes publ c confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]).

         The described pro bono committees are part of an official, court-sponsored program designed to help improve the administration of justice and to assist attorneys in satisfying their aspirational ethical goals to provide pro bono legal services (see 22 NYCRR part 1200, Rule 6.1 [eff. Apr 1, 2009]). This Committee previously has determined that judges may participate in the administration of organizations devoted to the improvement of the law, the legal system or the administration of justice, including pro bono action committees (see 22 NYCRR 100.4[C][3][b][i], [iii]; Opinions 08-192; 97-14 [Vol. XV]; 90-73 [Vol. V]). In addition, a judge may individually solicit attorneys for voluntary pro bono representation of the poor. However, in order to avoid the appearance of coercion, this Committee directed that acceptances of a judge’s solicitation should be returned to the court clerk, i.e., a non-judge involved in the administration of the program, rather than to the soliciting judge (see Opinion 90-73 [Vol. V]).

         The Committee believes there is no risk of an appearance of coercion when, after an attorney already has undertaken a matter pro bono, the attorney receives a letter from a judge, other than the judge who is presiding or who did preside in the attorney’s pro bono case, that expresses the judge’s appreciation for the attorney’s pro bono service. To the contrary, under the circumstances presented, a “thank you” is courteous, not coercive (cf. 22 NYCRR 100.3[B][3]). The Committee anticipates that the proposed thank-you notes will focus on encouraging and appreciating the attorney’s voluntary pro bono service, without reference to the merits of the underlying matter (see 22 NYCRR 100.2[A]; 100.3[B][8]).

         The Committee thus concludes that a judge serving on a court-sponsored pro bono action committee may sign and send formal or handwritten letters or notes of appreciation on the committee’s behalf, either soon after an attorney accepts a pro bono assignment or after the pro bono case is resolved at the trial court level, using either court letterhead or committee letterhead, to attorneys who serve as volunteer pro bono advocates before other judges.