Opinion 23-93
September 7, 2023
Digest: A full-time judge may serve as a non-legal advisor on a stakeholders committee to advise the county on an assigned counsel program that will provide legal assistance to eligible litigants, where the program will not appear in litigation but instead will contract with private attorneys to undertake representation.
Rules: 22 NYCRR 100.2; 100.2(A); 100.4(C)(2)(a); 100.4(C)(3); 100.4(C)(3)(a)(i)-(ii); Opinions 22-89; 18-40.
Opinion:
The inquiring full-time judge asks if he/she may serve as a non-legal advisor on a stakeholders committee created to advise the county on the creation of an assigned counsel program. The program was created by act of the county legislature to provide access to counsel to eligible litigants facing eviction in local justice courts. As structured, the program will not itself engage in litigation but instead will contract with private attorneys to undertake representation and will be administered by a director appointed by the county. The stakeholders committee is intended to be broadly inclusive, with participation by bar associations, the county attorney’s office, realtor groups, and other relevant entities. The committee will consider how the program should be run, including how attorneys will be selected, trained, and certified to serve on the panel. The committee will also discuss how to advertise the program’s availability to the public and how best to implement it in the justice courts that handle landlord tenant proceedings. The committee is entirely advisory in nature; it will make its suggestions and recommendations to the program’s director for consideration and decision.[1]
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]). As relevant here, a judge may serve as a “non-legal advisor of an organization or governmental agency devoted to the improvement of the law, the legal system or the administration of justice” (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]).
In general, a judge may be a member of an organization “devoted to the improvement of the law, the legal system or the administration of justice” (22 NYCRR 100.4[C][3]), even where, as here, it involves appointing a full-time judge to a “governmental committee … or other governmental position” (22 NYCRR 100.4[C][2][a]; Opinion 22-89). We have advised that a full-time judge may serve on the board of an assigned counsel program of the local bar association where the program does not appear as the attorney of record in any proceedings (see Opinion 18-40; 22 NYCRR 100.4[C][3][a][i]-[ii]). Here, too, the county program is not 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, contract attorneys on the panel will appear as attorney of record in all proceedings. Moreover, we note that a broad range of stakeholders have been invited to participate on the committee (see e.g. Opinion 22-89 [“It is also significant that the group appears to be balanced with subject matter experts from relevant state agencies, non-profits, prosecutors, and defense counsel.”]).
Accordingly, we conclude that the proposed service is permissible.
[1] While the enabling legislation does not seem to discuss the stakeholders committee, it requires the program’s director to meet regularly with judges and court personnel to discuss court procedures and certain programmatic issues.