Opinion 89-77

October 24, 1989

Digest:         A County Court judge may serve as a non-voting member of a committee which recommends candidates for appointment as county public defender.

Rules:          22 NYCRR 100.4(c)

Opinion:

         A County Court judge asks whether the judge may serve as a non-voting member of a committee which will interview and recommend candidates to the County Executive for appointment as Public Defender representing indigent defendants in criminal cases prosecuted in the judge’s court. Approximately seventy-five percent of all criminal defendants in the judge’s court are represented by the Public Defender.

         Section 100.4(c) of the Rules of the Chief Administrator provides:

A judge may serve as a member, officer, or director of an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice...He or she may make recommendations to public and private fund-granting agencies on projects and programs concerning the law, the legal system, and the administration of justice.

         Selecting counsel has been a traditional function of judges. Judges in state courts participate in assigning 18-B counsel to defendants, and judges in the federal district courts may appoint a temporary United States attorney in the event of a vacancy in that office, pursuant to 28 U.S.C. 546(d). Since the judges on this committee, which is the subject of the inquiry, would be performing a function that is similar to the functions that judges traditionally perform, and since the Committee’s purpose is to improve the administration of justice, the judge may serve as a non-voting member of the committee.

         Since the precise question posed by the inquiring judge is whether a judge may serve as a “nonvoting member” of the Committee, it is unnecessary in this opinion to address whether the judge also might properly serve as a “voting member”.