Opinion 09-13

January 29, 2009

Digest:         Whether a judge must advise a defendant that a sentence imposed upon conviction after trial may include incarceration, and whether a judge is obligated to ensure that a defense attorney has so advised his/her client, is a question of law the Committee cannot answer. If the law permits or requires a judge to do either, he/she must do so impartially, without coercing the defendant to accept a negotiated plea.

Rules:          Judiciary Law §212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.3; 100.3(D)(2);101.1; Opinions 08-08; 06-174; 89-54 (Vol. III).

Opinion:

         A judge advises that during criminal plea bargain negotiations involving the judge, an assistant district attorney, a defense counsel and a defendant, he/she has observed that the defendant has not been properly advised as to the potential for incarceration when deciding whether to plead guilty to the original or a reduced charge or to proceed to trial. The judge asks whether it is his/her duty to so advise the defendant or whether the judge is obligated “to enforce defense counsel’s duty” in this regard. The inquiring judge then proposes statements that he/she would make to a defendant to ensure that the defendant adequately understands his/her potential for incarceration or to a defense counsel to ensure that defense counsel has thoroughly explained the potential for incarceration to his/her client. Alternatively, the judge asks if, despite his/her concerns in a particular case, he/she should simply permit the case to proceed to trial. Finally, in the event a defendant who is convicted after trial states at sentencing that his/her attorney never advised him/her of the potential for a sentence of incarceration, whether the judge should give the defendant the telephone number and address of the Attorney Grievance Committee.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2), must respect and comply with the law, must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]), and must perform the duties of judicial office impartially (see 22 NYCRR 100.3).

         The Committee first notes that the substantive rights of criminal defendants and the procedures a judge must follow are defined by statute and case law. Therefore, whether a judge is obligated to explain possible incarceration to a defendant before the defendant decides to plead guilty or go to trial poses a question of law, not of judicial ethics. As the Committee is only authorized to issue advisory opinions concerning issues of ethical conduct or proper execution of judicial duties (see Judiciary Law §212[2][l]; 22 NYCRR 101.1), the Committee cannot answer a question of law (see Opinion 06-174).

         Should the inquiring judge determine that the law requires or permits him/her to make the statement to the defendant he/she proposes, the judge must do so impartially (see 22 NYCRR 100.3), without coercing the defendant to accept a negotiated plea.

         As for the defense counsel, a judge, who receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Rules of Professional Conduct, shall take appropriate action (see 22 NYCRR 100.3[D][2]). A substantial violation is one that implicates an attorney’s honesty, trustworthiness, or fitness as a lawyer (see Opinion 89-54 [Vol. III]). In addition, a judge may, but is not required to, report a non-substantial violation (see Opinion 08-08; cf. 89-54 [Vol. III]).

         Therefore, the judge in the present inquiry must determine whether a lawyer’s failure to advise his/her client that incarceration may be imposed upon conviction after trial is a substantial violation of the Rules of Professional Conduct. If the judge so concludes, then he/she must take appropriate action.