Opinion 23-235

February 1, 2024

Digest:  There is no ethical rule prohibiting a successor judge from reviewing and approving a voucher for services rendered by a court-appointed attorney, merely because those services occurred while the case was pending before a predecessor judge.

Rules:   County Law § 722-b(3); Judiciary Law § 21; 22 NYCRR 127.2(b); 22 NYCRR 100, Preamble; 100.1; 100.2; 100.2(A); 100.3(B)(7); 100.3(C)(1); 22 NYCRR 212.34; Opinions 91-130; People v Hampton, 21 NY3d 277 (2013); Matter of Smith v Tormey, 19 NY3d 533 (2012); Levinson v Lippman, 4 NY3d 280 (2005); Werfel v Agresta, 36 NY2d 624 (1975).

Opinion: 

          The inquiring judge, who recently assumed full-time office, asks if it is ethically permissible to approve a voucher for legal services rendered by an attorney appointed to represent a child or a defendant, when the work took place before the judge’s predecessor who is no longer on the bench.  The judge is concerned that approving these vouchers would require him/her to “certify something to which I have no personal knowledge.”

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act in a way that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  A judge should personally maintain high standards of conduct to preserve the integrity of the judiciary (see 22 NYCRR 100.1).  A judge must also dispose of all judicial matters promptly, efficiently, and fairly (see 22 NYCRR 100.3[B][7]), and cooperate with other judges and court officials in the administration of court business (see 22 NYCRR 100.3[C][1]).

The fact that an attorney was appointed by the judge’s predecessor and completed most or all of the assignment before the successor judge took office does not prevent the judge from approving a fee voucher for that work.  Judges inherit the caseloads of other judges for various reasons, including retirement or reassignment to another county or court.  In these circumstances, an administrative judge may “make whatever arrangements are necessary to accommodate the proceedings” by assigning the cases to another judge (22 NYCRR 212.34).  Indeed, the Court of Appeals has held that Judiciary Law § 21 “does not bar a substitute judge from deciding a question of law presented in a motion argued orally before another judge so long as a transcript or recording of the prior argument is available for review, and the substitute indicates on the record the requisite familiarity with the proceedings and no undue prejudice occurs to the defendant or the People” (People v Hampton, 21 NY3d 277, 279 [2013] [internal quotation marks and citation omitted]).

          Attorneys assigned pursuant to County Law article 18-B must obtain approval of the court before seeking or accepting any fee for their representation.  The statute states that “compensation and reimbursement shall be fixed by the trial court” (County Law § 722-b[3]).  The Court of Appeals has stated that “[f]ixing compensation for assigned counsel pursuant to the statute is one of the numerous responsibilities of courts and judges” (Werfel v Agresta, 36 NY2d 624, 626 [1975]).  Further, the assignment and compensation of counsel “can be most closely characterized as administrative in nature” (Matter of Smith v Tormey, 19 NY3d 533, 540 [2012]).

          The reasonable inference here is that in the absence of the judge(s) who originally presided over the case for which payment of legal services is due, another judge may be administratively assigned the responsibility of reviewing and approving the payment (see 22 NYCRR 127.2[b]; Levinson v Lippman, 4 NY3d 280 [2005] [upholding chief administrative judge’s authority to delegate to administrative judges authority to review enhanced payment vouchers and to modify award if found to be abuse of discretion by trial judge]). 

          We note that even when a judge has presided over a case since its inception, the payment voucher often contains entries outside the judge’s personal knowledge, such as meetings with a client, conducting legal research, visiting the crime scene etc.  If a judge questions an entry, it is, from a judicial ethics perspective, within the judge’s discretion so request information from an attorney in all instances.

Accordingly, we conclude the inquiring judge may ethically review and approve vouchers for work done on cases pursuant to an appointment made by the judge’s predecessor.