Opinion 23-35

March 23, 2023

Digest:  A magistrates association may send a letter to the District Attorney outlining the association’s concerns about the District Attorney’s policy concerning appearances and plea bargaining in vehicle and traffic law matters.

Rules:   22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(6)-(8); 100.3(C)(1); Opinions 23-18; 20-198; 19-120.

Opinion:

          The inquiring judge is a member of a magistrates association and makes this inquiry on behalf of the association.  Under the District Attorney’s new policy, assistant district attorneys will not appear in court on vehicle and traffic matters.  Further, the office will not conduct oral or in-person plea negotiations with defendant motorists, but will handle any such matters exclusively in writing.  The District Attorney has offered to provide “sample letters that other courts use to notify defendants” of this policy.  Members of the magistrates association are concerned that the policy “will create substantial backlogs, confuse unrepresented litigants and reduce the speed with which fair dispositions will be reached.”  Accordingly, the inquiring judge asks if the magistrates association may send a letter to the District Attorney, copied to the Public Defender, outlining the association’s concerns about this new policy. 

          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]).  A judge must dispose of all judicial matters promptly, fairly and efficiently (see 22 NYCRR 100.3[B][7]) and diligently discharge the judge’s administrative duties without bias or prejudice (see 22 NYCRR 100.3[C][1]).  A judge must not convey, or permit others to convey, the impression that others are specially positioned to influence the judge (see 22 NYCRR 100.2[C]).  A judge also must not make any public comment on a pending or impending proceeding in the United States or its territories (see 22 NYCRR 100.3[B][8]) and must avoid impermissible ex parte communications (see 22 NYCRR 100.3[B][6]).

          In general, judges may comment publicly on matters directly affecting the law, the legal system, or the administration of justice (see e.g. Opinions 20-198; 19-120).  The magistrates association’s concerns that the policy “will create substantial backlogs, confuse unrepresented litigants and reduce the speed with which fair dispositions will be reached” all clearly relate to the administration of justice, and therefore are a proper subject of public comment. 

          With respect to the District Attorney’s offer to provide “sample letters” for the court’s use, we note that Opinion 23-18 provides guidance on the use of form letters in vehicle and traffic matters.  As we explained in that opinion (internal quotation marks and citations omitted):

Judges must maintain their independence from prosecutors and not participate or assist in what is essentially the work of the prosecutor’s office.  Thus, a judge or court clerk may not distribute the prosecutor’s printed materials or informational document to defendants or otherwise act as the prosecution’s agent or intermediary.

In sum, we conclude the magistrates association may send a letter to the District Attorney, copied to the Public Defender, outlining its members’ concerns regarding the District Attorney’s policy concerning appearances and plea bargaining in vehicle and traffic law matters.