Opinion 07-22

September 6, 2007


Note: This opinion has been partially overruled by Opinion 17-110, to the extent it requires a judge to abstain completely from initiating or facilitating any plea agreements whatsoever. Please see Opinion 17-110 for a discussion of a judge’s ability to initiate, suggest, or facilitate a plea agreement in criminal cases.


Digest:         (1) A town justice may preside in traffic cases which the town attorney prosecutes. (2) A town justice may preside in traffic cases prosecuted by a town attorney who recently represented the town justice in an unrelated Article 78 proceeding which is now concluded. (3) Where the town board has appointed a special prosecutor in order to enter plea agreements that will cause traffic fines to accrue to the town, rather than to the state treasury, the town justice may nonetheless approve such a plea agreement in a particular case, so long as (a) the agreement is fair and appropriate in the matter, violates no statute or case law, and does not violate the Code of Professional Responsibility; and (b) the town justice does not in any way suggest, request, or encourage such plea agreements.


Rules:          22 NYCRR 100.1; 100.2; 100.2(A)(1), 100.3(B)(1); 100.3(E)(1); Opinions 98-14 (Vol. XVI); 91-93 (Vol. VIII); 89-87 (Vol. IV); 88-52 (Vol. II); 1992 Annual Report, New York State Commission on Judicial Conduct.


         A town justice asks about the ethical implications of presiding over non-misdemeanor traffic cases in the following circumstances:


The Town Board recently appointed the Town Attorney to serve as a special prosecutor for non-misdemeanor traffic matters. The Town Justice learned that the Town Board appointed the Town Attorney to serve as a special prosecutor in such cases so that the Town Attorney can enter into plea bargain agreements that will result in fine monies accruing to the Town instead of to the State. The Town Attorney is hired by and works closely with the Town Board, which determines the court’s budget, including the Town Justice’s salary.


Also, within the past several months, the Town Attorney represented the Town Justice in an Article 78 proceeding filed in Supreme Court that related to the Justice’s performance of his/her judicial duties.


         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must disqualify him/herself in proceedings whenever the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]). This Committee has previously advised that there is no conflict of interest requiring a village justice to exercise recusal when a village attorney appears in the village court on a regular bi-weekly basis (see Opinions 89-87 [Vol. IV]; 88-52 [Vol. II]), nor where a town attorney appears before a town justice (see Opinion 91-93 [Vol. VIII]). Therefore, as long as the inquiring town justice can remain impartial, he/she may preside when the town attorney appears as special prosecutor, even though the same town employs them both.

         Nor does the fact that the town attorney recently represented the town justice, in an unrelated and concluded Article 78 proceeding involving the justice’s official duties, warrant a different result. Although a judge is disqualified when an attorney who currently represents the judge in another matter in his/her official capacity appears in the judge’s court (see Opinion 98-14 [Vol. XVI]), the need for recusal ends once the Article 78 proceeding has ended.

         The inquirer also asks whether any judicial ethics considerations arise from the fact that the town board appointed the town attorney to serve as a special prosecutor in non-misdemeanor traffic matters. The town board’s purported purpose and expectation are to have the town attorney enter into plea agreements in cases charging defendants with violating state traffic statutes, which would have defendants plead guilty, instead, to violating town ordinances. As a result, any fine proceeds would accrue to the town, rather than the state treasury.


         All judges must uphold the integrity and independence of the judiciary (see 22 NYCRR 100.1) and must respect and comply with the law (see 22 NYCRR 100.2[A]). In addition, a judge shall be faithful to the law, and shall not be swayed by partisan interests (see 22 NYCRR 100.3[B][1]). The criminal procedure law and prior court decisions determine if and when a defendant may plead guilty to an offense different from the offense charged, if the prosecutor, the defendant, and the court all consent. The application of these statutes and precedents to a particular proposed plea agreement involves questions of law beyond this Committee’s jurisdiction (see Judiciary Law § 212[2][l]).

         The judge in the present inquiry, therefore, must ensure that any plea agreement he/she approves is consistent with such statutory provisions and decisional law, and is fair and appropriate in light of the substantive facts of the case.

         Furthermore, a judge should not consent to a plea agreement if the attorneys, by entering into it, would thereby breach the code of professional responsibility. Interpreting that code is likewise beyond this Committee’s statutory authority (id.).

         Consequently, if the Town Justice concludes these plea agreements violate the criminal procedure law or other statutory or decisional law, or, if, by entering such an agreement, either attorney would breach the code of professional responsibility, the judge, as a matter of judicial ethics, may not approve the agreement. Nor may a judge consider, as a factor in evaluating a particular agreement, whether the proceeds of an otherwise fair and lawful traffic fine, accrue to the town versus state treasury, assuming either is legally authorized to receive revenue from traffic fines.

         Finally, even if a particular plea agreement violates neither legal nor professional ethics strictures, a judge may not encourage, suggest, or request any such agreements between the attorneys and the parties, where the town attorney’s apparent motivation to enter such agreements is to enhance the town’s revenue flow. Regardless of the town’s motivation in appointing the town attorney, the ultimate recipient of fine money is not a factor a judge may consider in deciding whether to approve a particular plea agreement which the judge has concluded is otherwise fair, legal, and consistent with the code of professional responsibility.

         This Committee recognizes and has considered that some well-informed attorneys and judges have publicly objected to these plea agreements, contending they are inappropriate in all circumstances. We are also aware that the New York State Commission on Judicial Conduct, in its 1992 Annual Report (p.18), has criticized town and village justices “who routinely ‘reduce’ V&T charges to local violations for the purpose of diverting fine monies to the court’s locality.” However, in the absence of a statute, court decision, rule of judicial conduct, or attorney ethics principle which specifically prohibits the practice, and assuming the town justice neither encourages, suggests, nor requests such plea arrangements, we respectfully disagree with the contrary conclusion the Commission and others have reached.

         The power to modify or eliminate this controversial practice properly lies with the New York State Legislature. If that body deems the practice inappropriate, unwise, or improper as a matter of state public policy it may make an appropriate change.

         Furthermore, the Committee notes that our opinion would apply equally had this inquiry come from a village justice and the prosecutor had been appointed by a village board.

         Finally, we suggest that, in arriving at its legal and professional ethics conclusions, a town justice may, if he/she deems it advisable, consult the City, Town and Village Resource Center and/or a recognized body charged with interpreting the Code of Professional Responsibility, such as the New York State Bar Association’s Committee on Professional Ethics, or other similar recognized ethics entities.