Opinion 10-114

September 16, 2010

Digest:         The application of a United States Supreme Court decision to a judge’s plea allocution practices involves a question of law which is beyond the Committee’s statutory authority.

Rules:          Judiciary Law §212(2)(l); 22 NYCRR 100.2(A); 100.3(A); 100.3(B)(1); Opinions 09-105; 91-118 (Vol. VIII); Padilla v Kentucky, 130 SCt 1473 (2010).

Opinion:

         The inquiring judge states that in every case where the defendant intends to plead guilty, he/she includes the following leading questions in his/her plea allocution: (1) “You can read and write English?" and (2) “You’re a citizen of the Unites States?” The judge asks whether it is ethically permissible to ask these questions in light of a recent Unites States Supreme Court decision regarding the duties of defense counsel if a guilty plea may result in a client’s deportation (see Padilla v Kentucky, 130 SCt 1473 [2010]).

         A judge must respect and comply with the law (see 22 NYCRR 100.2[A]) and must perform the duties of judicial office as prescribed by law (cf. 22 NYCRR 100.3[A]; 100.3[B][1]).

         The application of a United States Supreme Court decision to a judge’s plea allocution practices involves a question of law, which is beyond the Committee’s statutory authority (see Judiciary Law §212[2][l]; Opinion 91-118 [Vol. VIII]). Therefore, the Committee must decline to respond to the inquiring judge’s question (see Opinion 09-105).