Opinion 16-175

January 26, 2017

Digest:         While a judge need not separately scrutinize all pleadings to determine whether his/her client is the issuing officer, the judge must not take a guilty plea, either by mail or in person, if the client’s role as issuing officer is readily available, such as in those instances where the officer’s name appears on the ticket.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 15-51; 09-19; 94-71.

Opinion:

         A part-time village justice who is permitted to practice law now represents a village public safety officer in a matter unrelated to village business. The officer's responsibilities include issuing tickets for building and housing violations, village ordinance violations, and parking tickets, all of which are adjudicated in the judge’s court. The judge understands that he/she must recuse when this client “may be called to provide responsive personal affidavits or testimony,” but assumes he/she may adjudicate tickets written by the client when the defendant pleads guilty by mail. The judge asks if he/she may adjudicate cases where the defendant pleads guilty in person, with or without counsel. The judge explains that “the identity of the officer is generally not reviewed” in such cases because:

I do not have to determine credibility nor take testimony from any witness. These are cases where the defendant has “worked out a deal,” i.e., plea bargain, with the Village Prosecutor and my job is to review and approve or disapprove the offer, accept the defendant’s plea and impose sentence.

            A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (22 NYCRR 100.2[A]). A judge must also disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]), and in other circumstances as required by rule or law (see e.g. Judiciary Law § 14).

         A judge may not preside in matters involving current or recent clients (see e.g. Opinions 09-19 [client is a police sergeant]; 15-51 [clarifying obligation with respect to former clients]). Thus, whether the guilty plea arrives by mail or is taken in person, a “judge may not preside in cases in which the officers appearing as witnesses or arresting officers are current clients of the judge” (Opinion 94-71). In matters where there is no court appearance and the defendants plead guilty by mail, the same rule applies, but the judge need not “separately scrutinize” all pleadings to determine the officer’s identity (id.). Rather, “[i]n the absence of knowledge that the arresting officer is a client, the judge is entitled to proceed with respect to the processing of the mail plea” (id.). This approach is intended to protect judges who may inadvertently overlook an obscure reference to the officer-client; it does not authorize judges to turn a blind eye to information on the face of the ticket (cf. Opinion 09-19 [“If the judge learns that the sergeant, although not appearing, is involved in a matter, the judge should disqualify him/herself”]).

         Accordingly, although this judge need not separately scrutinize all pleadings to determine whether his/her client is the issuing officer, the judge may not take a defendant’s plea, either by mail or in person, if the client’s role as issuing officer is readily available, such as in those instances where the officer’s name appears on the ticket.