Opinion 20-165

October 29, 2020


Digest:         A judge may ethically decline to participate in a district attorney’s traffic diversion program.


Rules:          Judiciary Law § 212(2)(l); 22 NYCRR 100.1; 100.2; 100.2(A); 100.2(C); Opinions 19-145; 18-49; 16-113; 16-92; 15-34; 14-175; 10-32/10-48; Marbury v Madison, 5 US 137 (1803).


         A town or village justice asks if they may ethically decline to participate in the district attorney’s traffic diversion program. The judge has identified many arguments against participating, including: (1) the requirement of an upfront application fee in a geographically low income area; (2) the district attorney’s promotion of the program as beneficial to the court to manage its caseload, implying that the district attorney has some involvement in matters of court administration and without referencing judicial fairness, a defendant’s constitutional rights, or the prosecution’s ethical responsibilities; (3) the provision of a third party to administer the program and all communications with the court, interfering with the judge’s ability to be satisfied that defendants are aware of all of their options; (4) an appearance that the program is designed to mitigate the challenges to the district attorney’s workload, rather than the court’s workload; (5) the program effectively limits the court’s review, discretion and ability to ensure the defendant’s right to a trial or supporting affidavit and the administration of a fair and equitable disposition; (6) the program appears to interfere with judicial independence and ability to decide whether a particular plea agreement is fair and appropriate with respect to each defendant; and (7) defendants might be misled into thinking that their application fee will ensure the court’s approval.

         A judge must uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1), promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and avoid even the appearance of impropriety (see 22 NYCRR 100.2). Thus, for example, a judge must not convey an impression that others are specially positioned to influence the judge (see 22 NYCRR 100.2[C]).

         We have issued many opinions concerning traffic diversion programs (see e.g. Opinions 19-145; 16-113; 16-92; 15-34; 14-175; 10-32/10-48). In general, a court has an independent role in deciding whether a particular plea agreement is fair and appropriate with respect to a particular defendant based on lawful considerations (see e.g. Opinion 10-32/10-48). We have repeatedly advised judges that if they conclude, in good faith, that a particular traffic diversion program is legal, then they are free to participate to the extent appropriate. Conversely, we have also advised judges that if they conclude that a traffic diversion program is illegal, then they must not voluntarily participate in it (see e.g. Opinions 16-113; 16-92). What is of paramount importance in each case is that each judge appreciates the importance of maintaining the judiciary’s integrity and independence (see 22 NYCRR 100.2). We emphasize that every inquiring judge, including this one, “has the inherent power to determine what law governs the exercise of his/her obligations in considering a proposed plea agreement, as well as the inherent power to interpret the appropriate provisions of governing law” (Opinion 15-34; see also Marbury v Madison, 5 US 137, 177 [1803] [“It is emphatically the province and duty of the judicial department to say what the law is.”]).

         Some ethical issues may nonetheless come into play, depending on the specific circumstances. For example, courts cannot pre-approve participation for all defendants nor should defendants be misled into thinking that program fees ensure court approval.1 Furthermore, “judges must maintain their independence from prosecutors and not participate or assist in ‘what is essentially the work of the prosecutor’s office’” (see Opinion 19-145 [citation omitted]). The inquiry suggests such concerns may be implicated here, as the proposed diversion program, as described, seems to take the court entirely out of the process and may fail to inform defendants of their rights under the law.

         It is axiomatic that a judge who makes a good-faith legal determination about the lawfulness of a plea agreement is necessarily acting ethically (see e.g. Opinions 18-49; 19-145). The same can be said for the judge’s decision to either participate or not participate in a district attorney’s traffic diversion program. We therefore conclude that this judge may ethically decline to participate in the traffic diversion program.

         We can only address ethical questions, not legal ones (see Judiciary Law 212[2][l]; 22 NYCRR 100.1). Any questions concerning the correctness of a judge’s interpretation of the law, “to the extent unsettled, must be raised and addressed by persons with standing in the appropriate legal venue” (Opinion 15-34 [citation and internal quotation marks omitted]).


1 Here, the DA’s website may suggest that the DA is purporting to provide a guarantee as follows: “Participation in this program allows the offender to settle a traffic citation without court appearances, points on their driver’s license, or increases in insurance premiums.”