Opinion 18-40

March 29, 2018

Digest:         A full-time judge (1) may serve on the board of a county’s assigned counsel program, where the program does not engage in litigation but instead contracts with private attorneys to undertake the representations; (2) may appoint qualified attorneys as assigned counsel in legally appropriate circumstances, even when those attorneys are his/her fellow directors; (3) may not serve on the board of a not-for-profit landlord that brings eviction proceedings in his/her court.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(C)(3); 100.4(C)(3); 100.4(C)(3)(a)(I)-(ii); Opinions 07-126; 07-72; 00-59; 98-162; 97-70; 96-84; 94-51; 91-78; 88-145; 88-77.

Opinion:

         A full-time judge asks if he/she may join the board of directors for two not-for-profit entities: the county’s assigned counsel program and an agency which rents to low-income tenants.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Subject to certain limitations, a judge may serve as a director of an organization devoted to the improvement of the law, the legal system or the administration of justice and/or a civic or charitable organization not conducted for profit (see 22 NYCRR 100.4[C][3]), provided the entity (I) is unlikely to be engaged in “proceedings that ordinarily would come before the judge” and (ii) in the case of a full-time judge, is unlikely to be engaged regularly in adversary proceedings “in any court” (22 NYCRR 100.4[C][3][a][i]-[ii]).

1. County’s Assigned Counsel Program

         The assigned counsel program, apparently affiliated with or established by a local bar association, contracts with private attorneys to represent indigent persons in criminal cases. In essence, the assigned counsel program oversees the county’s 18-B program. The judge regularly assigns attorneys from the program, including members of its board who are practicing attorneys, to serve as counsel for indigent persons. However, the assigned counsel program itself is not the attorney of record and does not appear in the courts.

         Because a full-time judge may not serve as an officer or director of an entity that is likely to be engaged regularly in adversary proceedings “in any court” (22 NYCRR 100.4[C][3][a][ii]), we have advised that a full-time judge may not serve as officer or director for a legal services agency for the elderly which provides legal assistance in landlord/tenant cases (see Opinion 97-70). Also, a full-time judge may not serve on a legal services organization board, even if its attorneys do not appear in the judge’s courtroom (see Opinion 96-84); a society for the prevention of cruelty to children whose employees appear regularly in family court (see Opinion 88-145); or Prisoners’ Legal Services of New York, which regularly engages in legal proceedings (see Opinion 88-77).¹

         Here, however, the assigned counsel program itself is never the attorney of record and is not “engaged” in proceedings in any court within the meaning of Sections 100.4(C)(3)(a)(i)-(ii); instead, it contracts with private attorneys who serve as attorney of record under the county’s 18-B program. Indeed, we have previously advised that a judge may serve on the board of an assigned counsel program created by a bar association to provide legal assistance to financially eligible persons (see Opinion 98-162). We adhere to that decision (see id.; cf. Opinion 91-78 [if legally permitted, a full-time judge may serve on a board that administers a fund to assist in providing legal services to the poor]).

         We also conclude the judge may appoint attorneys from the assigned counsel program, even if they are his/her fellow directors. A judge who joins a bar association’s elder law committee “may appoint otherwise eligible attorneys who also are members of the committee to fiduciary and counsel positions in the judge’s court in accordance with the Rules Governing Judicial Conduct” and other applicable rules (Opinion 07-126; 22 NYCRR 100.3[C][3] [judge must avoid nepotism and favoritism, and make appointments impartially and on the basis of merit]). We find Opinion 07-126 instructive, as the judge and attorneys are, in both instances, clearly working together to improve the law, the legal system and the administration of justice. A judge and attorney serving together on the board of the county’s assigned counsel program surely does not create any greater appearance of impropriety than serving together on a bar association committee. It is therefore permissible for the judge to appoint his/her fellow directors of the assigned counsel program to represent indigent persons in legally appropriate circumstances, provided he/she does so impartially and on the basis of merit (see Opinion 07-126; 22 NYCRR 100.3[C][3]).

2. Local Not-for-Profit Housing Agency

         The second not-for-profit agency is a landlord which initiates eviction proceedings in the judge’s court. Indeed, the agency retains private counsel to handle landlord/tenant proceedings, and its property manager regularly appears in such matters. The judge has further explained that eviction proceedings are discussed very generally at board meetings (e.g. the overall number of evictions), while the decision whether to evict is left to management. The judge asks if he/she may serve on the board and, if so, if he/she may also preside over the entity’s eviction proceedings.

         As previously noted, a full-time judge may not serve as an officer or director of an entity that is likely to be engaged regularly in adversarial proceedings in any court (see 22 NYCRR 100.4[C][3][a][ii]). Moreover, neither a full-time nor a part-time judge may serve as officer or director of an entity that is likely to be engaged in proceedings that ordinarily would come before the judge (see 22 NYCRR 100.4[C][3][a][i]).

         Here, service on the entity’s board would violate both proscriptions, as the entity is likely to be regularly engaged in litigation with its tenants and its eviction proceedings would ordinarily come before the judge. Accordingly, this full-time judge must not serve on the board (see e.g. Opinion 00-59).

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¹ Part-time judges are not subject to Section 100.4(C)(3)(a)(ii) and, thus, may serve on the board of a legal services agency which regularly engages in adversary proceedings, provided the agency and its employees are unlikely to be engaged in proceedings that ordinarily would come before the judge (see 22 NYCRR 100.4[C][3][a][i]; Opinions 94-51 [part-time judge may serve on the board of a legal assistance program whose attorneys “do not regularly appear” in the judge’s court]; 07-72 [part-time judge may serve on the board of a society providing legal services to children in family court, provided the society’s attorneys do not appear in the judge’s court]).