Opn. No.

Requestor: Hon. Francis T. Murphy, Presiding Justice New York Supreme Court, Appellate Division, First Department 27 Madison Avenue New York, New York 10010

Written by: Robert Abrams, Attorney General

You have asked whether attorneys who volunteer to serve as members of the mediation panel and as pro bono special counsel to assist the Supreme Court, Appellate Division, First Department, in the administration of the attorney disciplinary system, are covered by section 17 of the Public Officers Law.

Rules have been established for the conduct and discipline of attorneys in the First Department. 22 NYCRR Parts 603 and 605. The rules authorize the Bar Mediation Project under which volunteer attorneys may be appointed by the Court as bar mediators. 22 NYCRR § 605.20(e)(1), (2). Minor complaints involving the conduct of lawyers with no significant disciplinary history may be referred to bar mediators who attempt to mediate and resolve the matters raised by the complaint.Ibid. If the bar mediator is unable to resolve the matter or it appears that the matter should be further considered by the departmental disciplinary committee, the bar mediator is to refer the complaint back to the chief counsel's office for investigation in accordance with the rules. Ibid.

The Court is also authorized to appoint volunteer lawyers as pro bono special counsel. 22 NYCRR § 605.20(e). Pro bono special counsel have responsibility for expediting cases. Ibid.

Section 17 of the Public Officers Law provides for defense and indemnification by the State of an employee. The term "employee" is defined as

"any person holding a position . . . in the service of the state . . . or a volunteer expressly authorized to participate in a state-sponsored volunteer program, but shall not include an independent contractor."

Public Officers Law § 17(1)(a).

It seems clear that bar mediators and pro bono special counsel appointed by the Court to serve in the administration of the Court's attorney disciplinary system are volunteers "expressly authorized to participate in a state-sponsored volunteer program". They are "employees" within the meaning of section 17 of the Public Officers Law.

We conclude that attorneys who volunteer to serve as bar mediators and pro bono special counsels on behalf of the Supreme Court, Appellate Division, First Department, in the administration of the Department's disciplinary system, are covered by section 17 of the Public Officers Law.