Opinion 21-149

October 28, 2021

Please Note: This opinion has been modified by Opinion 22-56/22-67, which states: “Opinion 21-149 is modified to reflect that a judge may personally request pro bono assistance for an unrepresented defendant in a consumer debt case, provided the judge avoids undue pressure or coercion in making the request. Indeed, where the judge is reaching out to “specific attorneys and organizations that provide pro bono representation for defendants in such consumer debt matters” (id.), it seems especially unlikely to be perceived as coercive.”

Digest:         A judge may allow their court staff to solicit lawyers for voluntary pro bono representation of defendants in consumer debt cases, provided the judge avoids the appearance of coercing attorneys to participate in such representation. Additionally, allowing volunteer attorneys to appear virtually as lawyer for the day is acceptable.

Rules:          22 NYCRR 100.1; 100.2; 100.2(A); 100.2(C); Opinions 17-123; 17-114; 09-68; 08-192; 08-176; 93-51; 90-73.

Opinion:

         The inquiring full-time judge presides in civil consumer debt cases where unrepresented defendants sometimes appear unable to fully understand the proceedings or to marshal any potential legal defense they may have against the allegations. The judge is aware of a not-for-profit legal organization of volunteer lawyers that specifically “works with those sued for consumer debt” as well as a specific individual attorney who “regularly appears as a volunteer lawyer for the day in consumer debt matters.” Accordingly, the judge asks if they or their chambers staff may directly contact individual lawyers, or a program of volunteer lawyers, to ask if they would be willing to provide pro bono representation for such defendants. The judge also asks if they may permit volunteer attorneys to appear virtually for the purpose of representing these clients, similar to in-person “lawyer for the day” programs where a volunteer lawyer would be present in the courtroom in case unrepresented litigants wished to consult them.

         A judge must uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1), and must always avoid even the appearance of impropriety (see 22 NYCRR 100.2). Further, a judge must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Moreover, a judge must not lend the prestige of judicial office to advance the private interests of the judge or others; nor may a judge convey or permit others to convey the impression that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]).

         We have advised that “Nothing in the rules prohibits judges from soliciting pro bono representation. However, the judge should avoid the appearance of coercion” (Opinion 90-73). Thus, we said a judge may use a form asking attorneys to volunteer to represent indigent persons on a pro bono basis. However, in order to avoid any possible appearance of coercion, we cautioned that “the attorneys should not have to indicate whether they would accept or decline pro bono appointment; rather the forms should be filled out only by those attorneys who agree to accept pro bono assignments. In addition, in cases of acceptance, the forms should be returned not to the judge, but to the clerk.” (id.).

         We also said 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, noting that “under the circumstances presented, a ‘thank you’ is courteous, not coercive” (Opinion 09-68). Somewhat analogously, we said a judge who presides in veteran’s treatment court “may write to legislators asking for names of potential peer mentors to work with veteran-defendants in the program, provided the judge avoids both actual coercion and its appearance when requesting participation” (Opinion 17-123).

         We distinguish the current inquiry from Opinion 17-114, in which we said a judge presiding over a civil matter involving allegations of sexual abuse committed by a non-party minor should not solicit pro bono representation for the non-party minor and should not direct the parties’ attorneys to solicit such representation. Significantly, the judge had already determined that “the non-party minor ha[d] no statutory or constitutional right to counsel” in the matter (Opinion 17-114). Moreover, we noted that “the judge propose[d] to do far more than merely soliciting attorneys for involvement in a legal services program,” as the judge wished to make “a direct, and arguably coercive, request for an attorney or organization to represent a particular individual without any recompense” (id.).¹

         Here, by contrast, the unrepresented individual is a party litigant, specifically a defendant in a consumer debt case, and the judge is aware of specific attorneys and organizations that provide pro bono representation for defendants in such consumer debt matters. On these facts, we conclude that, absent any attempt to coerce representation, it is permissible for a judge to solicit pro bono representation for a defendant in the matter. However, the judge should not personally request the pro bono assistance because “the attorneys should not have to indicate [to the judge] whether they would accept or decline pro bono appointment” (Opinion 90-73 [pro bono acceptances “should be returned not to the judge, but to the clerk”]). Instead, consistent with Opinions 09-68 and 90-73, the judge may empower their court staff to, on behalf of unrepresented parties, solicit pro bono representation provided that the judge does not personally participate in such requests.

         With respect to the judge’s question about allowing volunteer lawyers to be available for virtual calendar appearances in a manner akin to in-person volunteer “lawyer for the day” programs, we see nothing “per se unethical about communicating using other forms of technology” (Opinion 08-176). Thus, we conclude such virtual appearances are ethically permissible (see e.g. Opinions 08-192 [city court judge may “announce at the beginning of the court’s calendar that volunteer attorneys are available in the courthouse to consult with and to represent tenants involved in pending summary proceedings,” although the judge “must make clear that the volunteer attorneys do not speak for the court, that the judge does not recommend any particular volunteer attorney, and that the court does not, by virtue of the volunteer attorneys’ availability in the courtroom, officially recommend them or their services”]; 93-51 [town judge may permit “a pro bono panel of local attorneys to consult with unrepresented parties in civil and small claims actions” in the courthouse, “provided that it is made clear that the attorneys do not speak for the court, and that the court facilities are furnished solely as a matter of courtesy”]).

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¹ Even so, we said the judge may nonetheless “make the non-party minor and his/her parent/guardian aware of the availability of pro bono legal services providers, lawyer referral service, and the like” (Opinion 17-114).