Opinion 22-21

January 27, 2022

Digest:        Whether a judge must or may conduct an inquiry into a potential conflict of interest arising from the pending prosecution of a criminal defense attorney presents a legal question beyond the jurisdiction of this Committee.

Rules:          Judiciary Law § 212(2)(l); 22 NYCRR 101.1; Opinions 21-49; 15-195; 10-196; 10-114; People v Gomberg, 38 NY2d 307 (1975).

Opinion:

         A criminal defense attorney who practices in the inquiring judges’ jurisdiction is currently being prosecuted by the District Attorney’s office. The District Attorney has sent a letter to the judges, as officers of a judicial association, conveying the District Attorney’s belief that “it is appropriate that, in all criminal cases in which [the attorney] represents a defendant, the Court should conduct an inquiry of the defendant to ensure that he/she is aware of the potential conflict that this situation presents and wants to continue to be represented by” the attorney. Citing People v Gomberg (38 NY2d 307 [1975]) for the proposition that a judge, aware that a potential conflict of interest may exist between an attorney and a client, must conduct an appropriate inquiry into the potential conflict, the District Attorney proffers a lengthy model inquiry, which the District Attorney believes “to be legally sufficient and appropriate under the circumstances,” although the District Attorney acknowledges that ultimately “[i]t is up to the Court to conduct this inquiry in a manner it deems appropriate.” Although the letter received from the District Attorney does not itself so state, the inquirers advise that the District Attorney’s office has suggested that the inquiry be conducted off-the-record in chambers. The inquiring judges ask whether the District Attorney’s proposed procedure is permissible, and whether the “sample inquiry” violates the Rules Governing Judicial Conduct and/or unduly interferes with the attorney-client relationship.

         As the Court of Appeals has explained, “Since the right to effective assistance of counsel and the right to retain counsel of one’s choice may clash when a retained attorney is involved in an apparent conflict of interest, a Trial Judge has a duty to protect the right of an accused to effective assistance of counsel. At the same time, a court should not arbitrarily interfere with the attorney-client relationship” (Gomberg, 38 NY2d at 313).

         The necessity or proper scope of a judicial inquiry into a possible conflict of interest, and the proper balance between the potentially competing considerations identified by the Court of Appeals, present legal questions beyond this Committee’s jurisdiction (see 22 NYCRR 101.1; Judiciary Law § 212[2][l]; Opinion 21-49; cf. Opinion 10-114 [application of United States Supreme Court decision to a judge’s plea allocution practices involves a question of law]).

         Similarly, whether any inquiry undertaken may be conducted off-the-record in chambers, or in the absence of affected counsel, present legal and constitutional questions which this Committee lacks power to address.

         No ethics issue is presented here because the District Attorney, although alerting the court to the possible conflict and its potential concomitant obligation to protect the rights of the defendant, has not asked the judge to “assist” the People in performing their prosecutorial duties (Opinion 10-196). Rather, the District Attorney expressly observes that “[i]t is up to the Court to conduct this inquiry in a manner it deems appropriate,” and – albeit offering a suggested model inquiry that the court remains free to accept or reject – does not seek to “direct the manner in which the judge conducts” the inquiry (id.).

         Finally, we note that “a judge who makes a good-faith legal determination based on the apparently controlling statutes and case law is necessarily acting ethically” (Opinion 15-195 n 1).