Opinion 16-68

June 16, 2016

Digest:         A judge may not voluntarily comply with guidelines requiring ethically impermissible conduct when deciding a defendant’s eligibility for assigned counsel.

Rules:          Executive Law § 832; Judiciary Law §§ 212(2)(l); 212(2)(l)(iv); 22 NYCRR 100.2(A); 100.3(B)(6); 100.3(B)(6)(d)-(e); 101.1; Opinions 13-124/13-125/13-128/13-129; 09-137; 98-150.

Opinion:

         An administrative or supervising judge asks about the propriety of following 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. These guidelines, which have not yet gone into effect, would apparently require judges to consider defendants’ applications for assignment of counsel ex parte and under seal in all circumstances. For example, the guidelines provide:

    •   “The eligibility screening process, whether done by another entity or the court, shall be done in a confidential setting and not in open court.”

    •   “Any entity involved in screening shall not make any information disclosed by applicants available to the public or other entities (except the court).”

    •   “Any documentation submitted to the court shall be submitted ex parte and shall be ordered sealed from public view.”

The inquirer asks several questions concerning the propriety of a judge’s voluntary compliance with these proposed guidelines. In essence, the judge is concerned about the 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.

         A judge must respect and comply with the law (see 22 NYCRR 100.2[A]) and 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 any ex parte communications when authorized by law to do so” (22 NYCRR 100.3[B][6][e]).

         A judge who speaks with a defendant privately about his/her financial eligibility for assigned counsel, outside the presence of any representative of the prosecution, is engaging in ex parte communications within the meaning of the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[B][6]).¹ If governing law authorizes such communications to take place ex parte (see 22 NYCRR 100.3[B][6][e]), or if the prosecution expressly or impliedly consents to the judge conferring separately with the defendant on this issue (see 22 NYCRR 100.3[B][6][d]), it is ethically permissible to do so.² Otherwise it is impermissible.

         In light of the many statutory provisions concerning access to court proceedings and records, which are intended, among other things, “to assure that court proceedings are held in official public facilities and not at private locations where unfettered public access may be jeopardized or where the perception of the public nature of what is occurring may be obscured” (Opinion 98-150), a judge may not ethically close the courtroom or seal the record concerning a defendant’s application for assigned counsel, except as authorized by law.

         Therefore, the Committee concludes that, absent a legal requirement to do so, a judge should not voluntarily comply with the proposed guidelines to the extent they require the judge to engage in impermissible ex parte communications or to close the courtroom or seal the record other than as permitted by law. 

         Of course, the Committee cannot resolve the 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 (see Judiciary Law § 212[2][l]; 22 NYCRR 101.1).

         While perhaps not strictly necessary here, the Committee makes three final observations for future reference. First, if an exception applies so the judge is ethically permitted to speak ex parte with a criminal defendant concerning his/her financial eligibility for assigned counsel (see 22 NYCRR 100.3[B][6][d]-[e]), the judge should discourage the defendant from raising or discussing the merits of the charges or other issues beyond those reasonably necessary to determine the defendant’s financial eligibility for assigned counsel (see Opinion 13-124/13-125/13-128/13-129 n 5). Second, 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 (see e.g. Opinion 09-137 [“a judge who directs a pre-trial conference based upon controlling statutory language, per se acts ethically, even if an appellate court later reverses on the ground that the judge’s statutory interpretation was erroneous”]). Third, while the Committee cannot comment on the likelihood that a disciplinary complaint will be filed against any particular judge, Judiciary Law § 212(2)(l)(iv) provides that:

Actions of a judge or justice of the unified court system taken in accordance with the findings or recommendations contained in an advisory opinion issued by the [Advisory Committee on Judicial Ethics] shall be presumed proper for the purposes of any subsequent investigation by the state commission on judicial conduct.

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         ¹ The Committee has stated 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” (Opinion 13-124/13-125/13-128/13-129). This statement may be somewhat misleading. A judge’s communications with a defendant who is not yet represented by counsel are not necessarily ex parte in every instance, unless they take place outside the prosecution’s presence.

         ² In Opinion 13-124/13-125/13-128/13-129, the Committee provided an example of ethically “implied” consent where, under the described circumstances, “a judge would be justified in treating the district attorney’s failure to make any reasonable effort to provide for a representative to participate in or attend the arraignment as ‘consent’ to conduct the arraignment ex parte with defense counsel assigned pursuant to the program.”