A new initiative to provide criminal defendants upstate with a lawyer at their initial court appearance has sparked ethics inquiries from local judges questioning their role in administering the program.

The inquiries came after some judges were asked to determine which criminal cases most needed a public defender, such as when defendants are facing incarceration, and others wondered if defenders and judges could discuss the program without the district attorney present.

In a joint opinion issued Dec. 26, four days before the counsel-at-arraignment program began, the Advisory Committee on Judicial Ethics said the judges:

• Cannot accept invitations from public defenders to hold private discussions about the program without the consent of the district attorney (13-125).

• May attend an open forum on implementation of the counsel-at-arraignment program provided the district attorney is expressly invited (13-125).

• May speak ex parte to a defendant to determine if the individual is financially eligible for the program (13-124).

• May conduct an arraignment after assigning counsel and in the absence of a prosecutor if the district attorney’s office is on notice and fails to participate (13-128).

• Cannot assist the public defender in deciding where to deploy staff by predetermining which defendants are facing incarceration (13-129) and, therefore, are most in need of representation.

William Leahy, director of the state Office of Indigent Legal Services, agreed with the advisory committee.

“I think the way it will be handled is as a resource decision by the defender, which is where it properly resides, and not a decision by the judge on which defendant will have a lawyer,” he said.

The concerns of the four judges stem from a new program geared toward advancing Chief Judge Jonathan Lippman’s goal of ensuring that all defendants are represented at their first court appearance.

Last year, the state approved the distribution of $12 million in grants to 25 counties where defendants often go unrepresented at their arraignments (NYLJ, Aug. 8, 2013). Implementation began Dec. 30, with grant recipients sending public defenders to arraignments that previously would have been conducted without a defense attorney.

But since the funding is not enough to ensure that defenders are available 24/7 at all locations, local officials have been attempting to design plans to ensure that defendants most at risk at their arraignment are represented even if the arraignment takes place in a far-flung locale in the middle of the night.

For instance, Dutchess County Public Defender Thomas Angell last month wrote to Hyde Park Town Justice David Steinberg and said that he will use his $615,000 state grant to ensure lawyers are available every hour of every day. But Angell asked the judge to call him only in those cases where there is a reasonable possibility that the suspect will be detained.

“If our office is called under circumstances where is it extremely unlikely that the defendant will be incarcerated, we may not be able to attend another proceeding where it is more probable that the defendant will be incarcerated or another Judge will be inconvenienced in waiting for our arrival,” Angell said in a letter to the judge.

Steinberg questioned whether he could ethically comply with Angell’s request and reached out to the advisory committee. The judge said in his ethics inquiry that he was troubled by the notion of prejudging at the outset whether a matter had bail implications.

“We cannot be selectively choosing who gets a lawyer and who doesn’t get a lawyer based on what we may or may not do,” Steinberg said. “The judges are going to have to call the public defender’s office on every single case.”

Steinberg said he fully supported providing counsel at arraignments but was bothered that, under Angell’s standard, a defender would be called if the accused risked incarceration, but not if faced with another serious consequence, such as suspension of a driver’s license for a drunken driving arrest or removal from his or her home through an order of protection.

The Advisory Committee said in 13-129 that he could not accommodate the public defender.

“In the Committee’s view, the public defender’s proposed procedure…is impermissible, as it effectively asks a judge to ‘pre-judge’ the case,” said the committee chaired by retired Appellate Division, First Department, Justice George Marlow. “Making the requested pre-judgments would, at the very least, create an appearance of impropriety and undermine public confidence in the judge’s integrity and impartiality.”

Steinberg, in an interview, said the result of the ethics opinion is likely that he and his counterparts will contact the public defender in all arraignments. Angell said it’s simply a matter of asset allocation.

“I don’t think it will cause any problem at all,” he said. “When the judges call, we’ll tell them when we can be there.”

While the program is in its early stages, Angell said, its need is obvious and its success seems certain.

“The people we meet in the middle of the night are very appreciative and thankful,” he said. “We are able to help them and connect them with relatives. It is nothing but positive and I wonder why we haven’t done it previously. The chief judge is absolutely right.”

North East Town Justice Casey McCabe, president of the Dutchess County Magistrates Association, in Inquiry 13-125, asked if it would be appropriate to accept an invitation to discuss the counsel-at-arraignment program with the public defender at a private meeting that did not include the district attorney.

The committee said no, and suggested that judges either meet jointly with the public defender and a representative of the district attorney’s office or attend an open forum on the program, to which the prosecutor is expressly invited.

McCabe, in an interview, said she wrote to the ethics committee as president of the association since her town is not yet among those involved in the counsel program. She said Angell agreed to speak at the association’s next meeting on Jan. 27, and District Attorney William Grady has been invited as well.

“I have received some emails from justices [whose courts are included in the program] who have done arraignments and the public defender has been there, but really it’s too early to know how it is working,” McCabe said. “I’m sure there’ll be a progress report at our monthly meeting.”

In response to Inquiry 13-128 from another judge, the ethics panel acknowledged “the possibility that a local prosecutor might seek to maintain the status quo by declining to appear or otherwise participate in arraignments” of indigent defendants represented through the new program. It said that if the district attorney is on notice, his or her failure to participate may be treated as implied consent to proceed ex parte.

“As long as the district attorney has notice of the counsel-at-arraignment program procedures and has a reasonable opportunity to appear or otherwise participate, the Committee concludes that a judge may conduct the arraignment after assigning counsel pursuant to the program, even if the district attorney either declines or fails to participate,” the panel said.

Leahy said the program is just getting underway and it’s far too early to gauge its success. He said minor “speed bumps” are expected as local officials implement the program and embrace the concept of universal representation at arraignment.

“When you change a practice that has been in place for many decades, there will be issues,” Leahy said. “Some judges are uncomfortable and are seeking guidance, and it’s appropriate for them to do so.”