Opinion 14-01

January 30, 2014

Digest:         Whether a judge may preside over an arraignment, in which a defendant is not represented by counsel, raises primarily legal questions; however, if a judge acts in conformity with governing law the judge will not violate the Rules Governing Judicial Conduct.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(B)(1); Joint Opinion 13-124/13-125/13-128/13-129; Opinion 11-87.

Opinion:

         A judge, who has reviewed Joint Opinion 13-124/13-125/13-128/13-129 and who is participating in a “group that is working to implement” the same counsel-at-arraignment program in a particular county, asks additional questions about a judge’s ethical obligations with respect to the program. The judge calls particular attention to a factor which was also mentioned in the Committee’s prior opinion, i.e., that “the grant money is not sufficient to pay for legal representation of all indigent defendants at all arraignments throughout the judge’s county. Thus, the counsel-at-arraignment program will be implemented in selected town, village and city courts; and in some cases, the public defender’s office wishes to impose additional restrictions” (Joint Opinion 13-124/13-125/13-128/13-129).

         The inquiring judge asks (1) whether there is “an ethical issue” for judges if the public defender “draw[s] up program guidelines that limit[] the program only to [f]elonies and only to certain courts” and (2) if a judge’s court is “not one of the selected courts” and the judge is called to conduct an arraignment for another municipality “that is one of the selected courts,” whether this will violate the Rules Governing Judicial Conduct by “denying the defendant the right to counsel at arraignment that [he/she] would have if the [other judge] had been available.”

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must “respect and comply” with the law (id.) and “be faithful to the law and maintain professional competence in it” (22 NYCRR 100.3[B][1]).

         In the Committee’s view, the fact that the counsel-at-arraignment program is being made available in some (but not all) courts and for some (but not all) charged crimes, does not prevent a judge from participating in the program where it is offered, provided that the judge is not called upon “to ‘pre-judge’ the case by making determinations proper to a bail hearing at the pre-arraignment stage” (Joint Opinion 13-124/13-125/13-128/13-129). Whether a judge may preside over an arraignment in which a defendant is not represented by counsel raises primarily legal questions; however, if a judge acts in conformity with governing law the judge will not violate the Rules Governing Judicial Conduct (see Opinion 11-87).