Opinion 13-33

March 14, 2013

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:         Although a court should not simply advise a defendant of a police department’s procedures for seeking a plea reduction, the court may develop a form, without the police department’s or other prosecuting agency’s involvement, listing all of a defendant’s options, including the right to plead not guilty and proceed to trial and distribute the form to defendants or to advise a defendant orally of all his/her options

Rules:          22 NYCRR 100.2; 100.2(A); Opinions 12-68; 10-177; 10-113; 09-118; 00-95 (Vol. XIX); 99-82 (Vol. XVIII); 96-132 (Vol. XV).

Opinion:

         The inquiring judge states that his/her local police department prosecutes certain violations in the judge’s court, and has established a process by which defendants may seek a reduction or dismissal of the charges against them. The judge asks whether it is ethically permissible for the court to “advise [defendants] of the availability of the process,” either on a defendant’s initial appearance before the judge, or when the defendant goes to the clerk’s office to ask what options are available to him/her.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).

         The Committee has previously advised that judges must maintain their independence from prosecutors and not participate or assist in “what is essentially the work of the prosecutor’s office” (Opinion 00-95 [Vol. XIX]; accord Opinion 10-113). Thus, a judge or court clerk may not distribute the prosecutor’s printed materials to defendants or otherwise assist a District Attorney in implementing his/her plea reduction procedures (see Opinions 12-68; 10-177; 10-113; 00-95 [Vol. XIX]; 96-132 [Vol. XV]). The Committee has specifically advised that “the court should not be the source or inspiration for a plea agreement as it would create an appearance of partiality and an indication that the judge is predisposed towards the defendant’s guilt” (Opinion 09-118; see also Opinion 96-132 [Vol. XV] [“the justice should be careful to leave the initiation and conduct of plea negotiations to the person whose duty it is to prosecute the charge”]).

         The same principles apply here, where the local police department serves as the prosecutor. Thus, the court should not simply advise defendants of the police department’s procedures for seeking a plea reduction as this may create an appearance of partiality or an indication that the court is predisposed towards a defendant’s guilt (see Opinions 09-118; 96-132 [Vol. XV]).

         However, it remains ethically permissible for the court to develop a form, without the police department’s or other prosecuting agency’s involvement, listing all of a defendant’s options, including the right to plead not guilty and proceed to trial; and to distribute that form to defendants or to advise a defendant orally of all his/her options (see Opinions 09-118; 00-95 [Vol. XIX]; 99-82 [Vol. XVIII]).