Opinion 23-51

May 4, 2023

Digest:  A full-time judge may not request a fee waiver to enroll in online diversion courses that the prosecution seeks to require as a condition of a negotiated plea agreement.

Rules: Judiciary Law § 212(2)(l); 22 NYCRR 100.1; 100.2; 100.2(A); 100,2(C); 100.3(B)(1); 100.4(C)(3)(b)(i); 100.4(D)(5); 100.4(D)(5)(a); Opinions 21-150; 14-127; 11-36; 08-177; 88-138.

Opinion:

          The inquiring full-time judge presides in a criminal part.  The District Attorney’s office has begun to condition plea agreements on defendants taking online training courses on subjects such as “Corrective Thinking,” Life Skills,” and “Financial Crimes.”  The charge for each course ranges from $65 to $125. Before sentencing defendants to take such courses, the judge would like to preview them.  The judge thus asks if it is ethically permissible to request a fee waiver in order to enroll.

          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 (see 22 NYCRR 100.2[A]).  A judge must uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1), and must maintain professional competence in the law (see 22 NYCRR 100.3[B][1]). A judge must not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]).  A judge must not “personally participate in the solicitation of funds or other fund-raising activities” (22 NYCRR 100.4[C][3][b][i]). 

          The prohibition on personal solicitation includes soliciting non-cash or in-kind donations, such as books to use as a sentencing tool in certain criminal cases (Opinion 14-127), or requesting a fee waiver (Opinion 88-138).  Furthermore, we note that a judge may not accept a “gift, bequest, favor or loan” unless an exception applies, and we see no exception here that would permit the judge to accept a fee waiver provided by the District Attorney’s office (see 22 NYCRR 100.4[D][5]).

          Thus, on the facts before us, we conclude it would be improper for this judge to request a fee waiver to enroll in the educational courses suggested by the ADA.

          However, we note there is no appearance of impropriety for a judge to accept an unsolicited gift, when an appropriate exception applies (see e.g. Opinion 21-150 [judge may accept unsolicited waiver of legal fees under the catch-all exception, when the donor is not a party or person who has or is likely to come before the judge]).  Of particular relevance here, a judge may accept “books, tapes and other resource materials supplied by publishers on a complimentary basis for official use” (22 NYCRR 100.4[D][5][a]).  Under these circumstances, the judge may accept a fee waiver for the courses directly from the publisher if offered (see e.g. Opinion 11-36). 

Whether the court system would be permitted to pay for such courses is an administrative issue beyond our power to address (see Judiciary Law § 212[2][l]; Opinion 08-177).