Opinion 13-50

June 13, 2013

Digest:         If it is legal for an administrative law judge of a traffic bureau to accept a guilty plea from a pro se defendant that includes incarceration, then it is also ethical for a part-time judge to do so in his/her separate capacity as an administrative law judge.

Rules:          Judiciary Law §212(2)(l); 22 NYCRR 100.2(A); 100.4(A)(1)-(3); 100.6(B)(4); 100.6(C); 22 NYCRR 101.1; Opinions 12-68; 10-114; 09-105.

Opinion: 

         The inquiring part-time judge is also employed as an administrative law judge for a traffic bureau, where he/she presides over certain non-misdemeanor Vehicle and Traffic Law matters. The judge states that prosecutors in traffic bureau matters negotiate directly with defendants, most of whom are not represented by counsel. According to the judge, the defendants “on rare occasions” agree to jail time rather than pay a substantial fine. The judge asks whether it is ethically permissible to accept a guilty plea that includes incarceration, where the defendant has not retained or consulted with an attorney.¹

         A judge must respect and comply with the law and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A part-time judge may accept public employment in a federal, state or municipal department, provided such employment is not incompatible with judicial office and does not conflict with performance of the judge’s judicial duties (see 22 NYCRR 100.6[B][4]).²

         Although judicial approval of a plea agreement, like all other activities of a judge of the Unified Court System, is subject to certain ethical constraints (see Opinion 12-68), the Committee has previously advised that it cannot determine whether a particular form or procedure concerning plea agreements is legally sufficient, as doing so calls for a legal opinion that the Committee is not authorized to offer (see Opinions 12-68; 10-114; 09-105). In the Committee’s view, whether a part-time judge may, in his/her separate capacity as an administrative law judge for a traffic bureau, accept a guilty plea under the circumstances described is likewise a question of law, not ethics. Therefore, it is beyond the Committee’s jurisdiction to answer (see Judiciary Law §212[2][l]; 22 NYCRR 101.1).

         Thus, if it is legal for an administrative law judge of a traffic bureau to accept a guilty plea from a pro se defendant that includes incarceration, then it is also ethical for the inquiring part-time judge to do so when presiding as an administrative law judge.

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     ¹ To the extent that the inquiring judge purports to ask this question on behalf of retired judges who are serving as administrative law judges in the traffic bureau, the Committee notes that the Rules Governing Judicial Conduct do not apply to administrative law judges unless adopted by the agency (see 22 NYCRR 100.6[C]).

     ² In addition, a judge’s extrajudicial activities, including outside employment, must not cast reasonable doubt on the judge’s capacity to act impartially as a judge or detract from the dignity of judicial office (see 22 NYCRR 100.4[A][1]-[3]).