Opinion: 99-148

June 13, 2000

Digest:  A judge may hold or otherwise facilitate a settlement conference as long as the attempt to aid in the disposition of a case is not intended to (1) further the judge's convenience or personal interests; (2) coerce a disposition, or (3) otherwise give an appearance of impropriety.

Rule:  22 NYCRR 100.2(C);
           Opinion 91-39 (Vol. VII);
          Matter of Mulroy, 2000WL 352619 (N.Y.).


            A judge seeks the advice of the Committee as to the permissible scope of judicial participation in settlement conferences in view of the determination of the State Commission on Judicial Conduct in Matter of Mulroy (Comm. Jud. Cond., August 23, 1999).

            In that determination, the Commission faulted the judge for making a "calculated statement designed to produce a result: plea bargains that would lighten his case load" and for pressing the prosecutor to abort the trial and offer a plea so that the judge could get home for "men's night out."

            Following the inquiry to this Committee, the Court of Appeals issued its decision in which it accepted the determination of the Commission and rejected the judge's denial that there had been an attempt to coerce a plea offer.

            As stated by the Court (Matter of Mulroy, 2000WL352619 (N.Y.):

Once again, however, the Referee rejected petitioner's defensive version, and we uphold that determination. In any event, the "harm inured when [petitioner] indicated he would use his judicial powers to satisfy a personal [interest], a classic instance in which 'an appearance of such impropriety is no less to be condemned than is the impropriety itself'" (Matter of Schiff, supra, 83 N.Y.2d at 693, 613 N.Y.S.2d 117, 635 N.E.2d 286, quoting Matter of Spector v. State Commn. on Judicial Conduct, 47 N.Y.2d 462, 466, 418 N.Y.S.2d 565, 392 N.E.2d 552). As a judge, petitioner was duty-bound to preserve the decorum of the courtroom (see, 22 NYCRR 100.3[B][3] and avoid abusing his judicial authority to advance private interests (see, 22 NYCRR 100.2[C]). His failure to do so is amply supported by the record.

            In our view, neither the determination of the Commission nor the decision of the Court of Appeals in any way negates the legitimacy of judicial participation in the settling of cases. See, e.g., Opinion 91-39 (Vol. VII). At issue in Mulroy was an unfortunate instance of a judge "abusing his judicial authority to advance private interests," in violation of section 100.2(C) of the Rules Governing Judicial Conduct. In effect, the judge was seeking to coerce a plea. Condemnation of such abuse by both the Commission on Judicial Conduct and the Court of Appeals, under the circumstances shown, cannot reasonably be seen as deterring a judge from good faith participation in the settlement process.