Opinion 16-140

December 8, 2016

Digest:         Absent any factors creating an appearance of impropriety and in fulfillment of a defendant’s fundamental right to counsel, a judge may consider a defendant’s written form application for assigned counsel ex parte and make a determination of financial eligibility on an ex parte basis. However, if the judge reviews an ex parte communication relating to the underlying prosecution, he/she must disclose it to all sides.

Rules:          NY Const art I § 6; County Law § 722; Executive Law § 832; 22 NYCRR 100.2(A); 100.3(B)(6); 100.3(B)(6)(d), (e); 127.2(b); Opinions 16-68; 15-178; 14-34; 13-124/13-125/13-128/13-129; 01-100/01-101; 90-125; Matter of Bauer, 3 NY3d 158 (2004); People v Felder, 47 NY2d 287 (1979); People v Witenski, 15 NY2d 392 (1965).

Opinion: 

         A multi-bench judge asks if he/she may determine a criminal defendant’s eligibility for assigned counsel ex parte based on written forms. The judge states that, under the county’s 18-B program, defendants submit “financial affidavits,” which are written responses to a form application to determine a defendant’s financial eligibility for assigned counsel. In his/her county, judges “have treated this application as an administrative ex parte proceeding.” The financial affidavits, although submitted ex parte, are not sealed and are public records on file in county and family courts, available upon request. The financial affidavit forms contain no case-specific questions, and thus do not invite disclosure or discussion of facts or legal issues relevant to the underlying case. Indeed, should a defendant ever provide “gratuitous information concerning his or her case” on the form, the judge would “distribute the application to all parties to avoid ex parte communications.” The judge now questions this practice in light of Opinion 16-68, which addressed certain proposed guidelines purporting to require judges to consider defendants’ financial eligibility ex parte and under seal in all circumstances.¹

         A judge must always respect and comply with the law and act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Additionally, a judge must not “initiate, permit, or consider ex parte communications” unless an exception applies (22 NYCRR 100.3[B][6]). For example, a judge may initiate or consider ex parte communications on consent of the parties (22 NYCRR 100.3[B][6][d]) or “when authorized by law to do so” (22 NYCRR 100.3[B][6][e]).

         The Committee has observed “that the Commission on Judicial Conduct has disciplined judges for having deprived defendants and litigants of certain fundamental rights” (Opinion 90-125). The right to counsel is unquestionably a fundamental right, rooted in common law and constitutional principles and codified by statutes (see People v Witenski, 15 NY2d 392, 396-97 [1965]). The Court of Appeals recognizes this right as “absolutely fundamental to the protection of a defendant’s other substantive rights” (Matter of Bauer, 3 NY3d 158, 164 [2004] [sustaining charges of misconduct arising out of the failure to advise defendants of their right to counsel]). Thus, the Committee has advised that a judge’s obligations in assigning counsel for indigent defendants “may have constitutional dimensions” (Opinion 14-34, quoting Joint Opinion 01-100/01-101 [“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 also generally NY Const art I § 6; County Law § 722; People v Felder, 47 NY2d 287, 295 [1979] [“the right to assistance of counsel is an essential ingredient in our system of criminal jurisprudence”]).

         As stated in Opinion 13-124/13-125/13-128/13-129 (footnotes and citations omitted):

Initially, the Committee notes that when a defendant appears before a judge for arraignment, the judge’s proposed communications with the defendant about his/her financial status are indeed ex parte communications in an identifiable pending proceeding [if the prosecution is not present]. However, it is permissible for a judge to engage in ex parte communications when authorized by law to do so. Here, the Criminal Procedure Law authorizes – and indeed apparently requires – a judge to speak ex parte with a defendant about topics relevant to determining the defendant’s financial eligibility for assigned counsel. Such communications are therefore permissible.

Similarly, based on the facts provided by the inquirers, the Committee believes that the program itself contemplates certain very minimal ex parte communications between the judge and the defense attorney in order to determine the defense attorney’s availability pursuant to the program procedures and to provide the attorney a copy of the accusatory instrument by fax or by telephone.

The Committee cautioned judges “not [to] attempt to go beyond the narrow range of topics necessary to determine the defendant’s eligibility,” as the exception “does not justify or warrant a discussion of the merits of the charges against the defendant or other issues beyond those reasonably necessary to determine the defendant’s financial eligibility for the counsel-at-arraignment program, and the judge should discourage any attempt by the defendant to raise or discuss such issues ex parte” (id. fn 5).

         Conversely, in Opinion 16-68, the Committee considered whether judges must follow the Criteria and Procedures for Determining Financial Eligibility for Assignment of Counsel prepared by the Office of Indigent Legal Services pursuant to Executive Law § 832. The guidelines specifically required judges to screen all defendants “in a confidential setting and not in open court” and directed all documentation be submitted to courts ex parte and ordered sealed from public view. Indeed, as the Committee explained, the core concern underlying Opinion 16-68 was:

the [guidelines’] requirement that judges must review an indigent defendant’s application for assignment of counsel ex parte and must close the courtroom, seal the records, and otherwise refuse to disclose the contents of an indigent defendant’s application for assignment of counsel, even though (according to the inquirer) applicable statutes do not require confidentiality and do not permit records to be sealed.

Absent resolution of underlying legal questions such as “whether applicable statutes do (or will) authorize ex parte communications, closed courtrooms, and sealed records with respect to a defendant’s application for assigned counsel; whether the Office of Indigent Legal Services’ guidelines will have the force of law; and whether the guidelines will supersede or amend other rules or statutes on these issues” (Opinion 16-68), the Committee could not determine whether compliance with the guidelines would be ethically permissible. Indeed, the guidelines appeared to mandate entirely unmonitored and unaccountable oral ex parte communications in closed courtrooms between judges and defendants concerning financial eligibility for assigned counsel. Thus, the Committee advised that a judge should not voluntarily comply with the guidelines to the extent that they require a judge to engage in ethically impermissible conduct, absent a legal requirement to do so (see id.). In the opinion’s final paragraph, however, the Committee noted that “a judge who makes a good-faith legal determination of the legal issues involved, and makes a good-faith effort to follow governing law, does not thereby violate the Rules Governing Judicial Conduct” (id.).

         Here, unlike in Opinion 16-68, the judge does not propose to seal defendants’ applications for financial eligibility or close the courtroom to engage in unmonitored, unaccountable ex parte communications with defendants. The ex parte communications will be maintained for public view consistent with other court records, subject to any applicable statutes. Additionally, the proposed ex parte communications will be responses to a written form, which is designed to minimize the likelihood that a defendant would volunteer comments or make factual allegations relevant to his/her case.

         Under these circumstances, and absent any special factors creating an appearance of impropriety, a judge may consider a defendant’s ex parte written form application for assigned counsel and make a determination of financial eligibility on an ex parte basis, when exercising his/her constitutional and statutory duty to guarantee defendants their fundamental right to counsel (cf. 22 NYCRR 100.3[B][6][e]; Opinion 13-124/13-125/13-128/13-129).

         However, if the defendant shares or includes information beyond the narrow range of topics necessary to determine the defendant’s financial eligibility, such as a discussion of the merits of the charges against the defendant, and the judge reviews it, the judge must disclose such ex parte communications to all sides (cf. Opinions 15-178; 13-124/13-125/13-128/13-129).

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         ¹ After this inquiry was decided, the inquirer forwarded a legal memorandum issued by OCA counsel. However, the Committee cannot address or resolve legal questions and thus need not consider this supplemental information.