Opinion 93-60

June 10, 1993

Digest:         A City Court judge may not inquire of members of the local criminal bar whether any of them would accept as a private client someone who could only pay an “authorized payment” as the interests of justice may dictate as outlined in County Law §722-d.

Rules:          22 NYCRR 100.2(a); 100.3(b)(4); 100.4(a).

Opinion:

         A City Court judge inquires whether, in lieu of assigning a public defender to a defendant in the first instance, the judge may ask members of the local criminal bar if any of them would accept as a private client someone who could only pay an “authorized payment” as the interests of justice may dictate as outlined in County Law §722-d.

         As pointed out by the judge, County Law §722-d applies to a situation where a public defender or legal aid society attorney has been appointed for a defendant who subsequently appears to be financially able to obtain counsel on his or her own, or to make a partial payment for such representation. The statute further states that “counsel may report this fact to the court and the court may terminate the assignment of counsel or authorize payment as the interest of justice may dictate. . . .”

         Although this query presents more of a legal question than an ethical issue, we shall address the question nevertheless. The inquirer apparently seeks to take County Law §722-d a step further – before appointing an assigned counsel (i.e., a public defender) to a defendant who, financially, may be in a position to make an “authorized payment,” the Court would first determine the defendant’s ability to pay. If the Court found the defendant able to contribute to his or her own defense, the Court, in lieu of rejecting defendant’s request for appointed counsel, would refer the defendant as a paying client to an attorney in private practice who has been solicited by the Court and has agreed to accept such “authorized payment.”

         Section 100.3(b)(4) of the Rules of the Chief Administrator of the Courts states that a “judge shall exercise the power of appointment only on the basis of merit, avoiding favoritism.” It appears to the Committee that the system proposed would create the appearance of favoritism in appointments made by the Court. An attorney would be appointed only if he or she were willing to accept an “authorized payment.” There is a possibility this process of attorney selection could create the appearance that the Court is not impartial (see, 22 NYCRR §100(a)). Furthermore, an attorney might feel pressured to accept an “authorized payment” so as to gain the Court’s favor.

         In our opinion, it seems the judge would be better served by contacting the local bar association and extol to its members the virtues of creating a panel of attorneys who would handle semi-indigent clients. The panel would be selected by the bar association and would be willing to make special financial arrangements with such clients (see, People v. Alessi [Anthony], 154 Misc.2d 322). This would be an acceptable alternative as a judge is not prohibited from speaking, writing, lecturing, teaching and participating in activities which concern the legal system (see, 22 NYCRR §100.4(a)).