Opinion 10-177

December 9, 2010

Note: While the outcome of this opinion remains unchanged, please see Opinion 17-110 for a discussion of a judge’s ability to initiate, suggest, or facilitate a plea agreement in criminal cases.

Digest:         (1) A court should not direct defense attorneys who wish to negotiate a plea agreement to contact the prosecutor at the court’s address. (2) A court should not send a copy of a prosecutor’s proposed plea agreement to a defendant’s attorney and ask him/her to either sign and return it to the court if the proffered plea is acceptable or else notify the court that the plea is not acceptable so that the court clerk can schedule a trial date.

Rules:          22 NYCRR 100.1; 100.2; 100.2(A); Opinions 09-160; 09-118; 09-105; 00-95 (Vol. XIX); 99-82 (Vol. XVIII); 98-57 (Vol. XVI); 96-132 (Vol. XV).

Opinion:

         A judge asks whether it is ethically permissible for him/her to direct attorneys representing defendants in Vehicle and Traffic matters who wish to negotiate a plea agreement to send all correspondence concerning a plea agreement to the prosecutor assigned to the judge’s court at the court’s address. The judge advises that he/she does not see any plea agreements until all parties have signed them.

         The judge also asks whether it is ethically permissible for the court clerk to send a copy of the prosecutor’s proposed plea agreement to the defendant’s attorney and to ask him/her to sign the memorandum of plea agreement if the proffered plea is acceptable and return it to the court, or, if the proffered plea is not acceptable, to notify the court so that the court clerk can schedule a trial date.

         A judge must uphold the integrity and independence of the judiciary (see 22 NYCRR 100.1), avoid impropriety and even the appearance of impropriety (see 22 NYCRR 100.2), and 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]).

         The Committee previously has advised that a court should not mail to defendants, or make available to defendants in the courtroom, printed forms to be executed by a defendant signifying the defendant’s request and agreement to plead guilty to a reduced charge in Vehicle and Traffic Law cases (see Opinion 96-132 [Vol. XV]). Similarly, in Opinion 98-57 (Vol. XVI), the Committee advised that a court should not distribute letters to defendants, that the District Attorney’s Office prepared, advising defendants they may contact the District Attorney’s Office to negotiate a plea and describing the procedures necessary to effectuate a negotiated plea (compare Opinion 98-57 [Vol. XVI] [prohibiting court’s use of prosecutor’s form] with Opinions 09-118; 00-95 [Vol. XIX]; 99-82 [Vol. XVIII] [permitting use of official court form that advises defendants of all procedural options]). While it is appropriate for the court to accept plea agreements memorialized on a form the District Attorney prepares, it is not permissible for the court to distribute such forms to defendants and/or defense counsel. The Committee previously has advised that doing so would create an appearance that the court believes the defendant is guilty of some offense or is predisposed in favor of the prosecution’s position (see Opinions 09-105; 96-132 [Vol. XV]).

         For similar reasons, it is also not permissible for the court to direct defendants to send mail for the prosecutor to the court or to receive mail addressed to a prosecutor at the court address. To do so would create an appearance that the court is improperly serving or aligned with prosecutorial interests (cf. Opinion 09-160 [discussing limitations on a court’s ability to “assist” prosecutors in fulfilling their prosecutorial functions]) and, therefore, would compromise the independence of the judiciary (see 22 NYCRR 100.1) and public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]).