December 2, 2021
Digest: A judge may respond to the county comptroller’s survey concerning the county’s assigned counsel program, subject to generally applicable limitations on judicial speech and conduct.
Rules: 22 NYCRR 100.1; 100.2; 100.2(A); 100.2(C); 100.3(B)(8); Opinions 21-89; 20-196; 18-132; 11-116; 10-131.
A judge asks if it is ethically permissible to respond to a survey from the county comptroller concerning the administration of the county’s 18-b assigned counsel program. The county plans to use survey responses to help address “a variety of concerns both from the legal community and from clients about how attorneys are paid and the quality of representation for 18-b clients.” The survey asks judges several detailed questions about the program:
1. How often do you appoint an 18-b attorney in your court?
2. In what types of cases do you find you are appointing 18-b attorneys?
3. Do you find there are ample 18-b attorneys from which to make the
appointment? And if not, what would you recommend to improve the pool?
4. Are you satisfied with the quality of work provided by 18-b attorneys?
5. What are some of the areas of improvement you see for 18-b counsel?
6. What is your method of reviewing 18-b invoices from attorneys?
7. Do you ever reject 18-b invoices and if so, why?
8. Do you have any suggestions to improve 18-b services in [the county]?
Finally, although the survey is not anonymous, the comptroller’s office plans to share the results “in an anonymized form” with the county executive and the 18-b administrator.
A judge must uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1), must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not lend the prestige of judicial office to advance any private interests; nor may a judge convey or permit others to convey the impression that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]). While a judge must not publicly comment on a pending or impending proceeding in any court within the United States or its territories (see 22 NYCRR 100.3[B]), a judge may “explain for public information the procedures of the court” (id.).
In general, judges may accede to requests for information or statistics regarding court operations but must refrain from commenting on pending or impending cases (see Opinion 21-89; 22 NYCRR 100.3[B]). For example, a judge may answer survey questions and participate in a follow-up interview concerning “Justices’ Perspectives on the Changes in Their Courts,” with those caveats (see Opinion 10-131). Thus, we said a judge may participate and complete a survey from the local social services agency concerning the number of eviction petitions, proceedings, and warrants filed or pending before the court, so that the agency could assess the likely impacts of lifting a moratorium on eviction (see Opinion 21-89). However, we noted that participation in the survey was voluntary and entirely in the judge’s discretion (id.). Likewise, we said a judge may participate in an interview with a not-for-profit entity retained by the county legislature to make recommendations concerning jail overcrowding, subject to generally applicable limitations on judicial speech and conduct (see Opinion 18-132).
To the extent that the survey questions here ask for the judge’s evaluation of work performance by the pool of 18-b attorneys who have appeared before the judge, we believe this is also permissible (cf. Opinions 20-196 [judge may respond to inquiry from town board or town supervisor concerning the performance of a town employee who has appeared before the judge for several years]; 11-116 [judge may voluntarily disclose facts concerning an individual’s performance as a prosecutor to the legislative body which appoints the prosecutor if the judge concludes the prosecutor’s conduct substantially violates the Rules of Professional Conduct, or otherwise affects the administration of justice]). We note the requested comments will be based on the judge’s personal observations about the quality of representation and could affect the administration of justice.
In sum, we see no ethical impropriety in this judge responding to the county comptroller’s survey as part of the county’s efforts to improve the administration of its 18-b program. Thus, the judge may participate in the survey, subject to generally applicable limitations on judicial speech and conduct. We note that the judge is not ethically required to participate in the survey, but may do so entirely in the judge’s sole discretion.