June 18, 1999
Note: While the outcome of this opinion remains unchanged, 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: The distribution by the court of a written form to defendants in traffic cases, which informs defendants of all options available, including the contacting of the prosecutor's office for the purpose of negotiating a plea, is not ethically improper, provided that certain safeguards are present.
Rule: Jud. Law §212(2)(f); Crim. Proc. Law §10.40; 22 NYCRR 100.1; 100.2(A); Opinions 96-32 (Vol. XV); 93-58 (Vol. XI).
An Administrative Judge inquires about the permissibility of advising defendants charged with infractions and other minor offenses and violations under the Vehicle and Traffic Law of their option of contacting the prosecutor for the purpose of negotiating a plea to a lesser charge. Such information would be in written form and made available to defendants in the courthouse or by mail.
As stated by the judge:
[M]ay I, as an Administrative Judge, develop any procedure making a form available to defendants, either in court, in the court facility, or by mail regarding negotiated pleas. The specific purpose of the form would be to notify the defendant of the possibility of communicating directly with the district attorney, appropriate municipal attorney or other non-peace officer prosecutor for the purpose of negotiating a mutually acceptable disposition for submission to the court. It would be made clear that the available material is for information only and is not part of the adjudicative process. This initiative would be analogous to the initiative currently taking place in the Housing Parts of the New York City Civil Courts utilizing kiosks, which enables litigants to acquire information on litigation procedure within the court. Pursuant to the Chief Judge's mandate that court employees give more procedural assistance to unrepresented litigants, similar efforts are being planned across the state. Some utilizing kiosks or the Internet and others personal involvement by the clerks.
I also would appreciate it if the Committee would advise which elements of the proposed procedure might be ethically permissible or set parameters in which I might develop a procedure that would be both ethical for me to distribute and ethical for local court judges to implement.
The Committee is of the view that it is possible to devise a form and procedure that do not place the court in a position of advocating a negotiated plea or in any way indicating a predisposition in the matter, in contravention of section 100.2(A) of the Rules Governing Judicial Conduct. 22 NYCRR 100.2(A). To achieve that goal, it is essential, in our view, that the writing list all available options, e.g., the right to retain an attorney; to plead not guilty and have a trial; to waive the right to a trial by pleading guilty to the charge; and the option of communicating with the appropriate prosecutorial office concerning a disposition, which proposed disposition will be subject to the approval of the court. Nothing in the document should indicate a preference by the court as to any of the options. It should be made clear, as the judge indicates, that the form is for informational purposes only, and the defendant may not be required to "check-off," his or her preference. The form may be made available in the courthouse, including the courtroom, and by mail or, perhaps, electronically, and the prosecuting authority should not be involved in its distribution.
We believe that adherence to these guidelines would avoid the infirmities found by the Committee in somewhat related situations. In Opinion 93-58 (Vol. XI), for example, the Committee stated that it would not be ethical for a town justice to participate in a program devised by the local District Attorney dictating procedures for plea negotiations in traffic infractions in town court. Opinion 93-58 (Volume XI). The program imposed certain duties upon the courts. The Committee advised against participation by the court on the ground that a District Attorney is without authority to impose rules of procedures upon a court, and therefore, judicial acceptance and adherence to those procedures would constitute an intrusion upon the independence of the judiciary in violation of section 100.1 of the Rules of the Rules Governing Judicial Conduct. 22 NYCRR 100.1.
The Committee has also advised that it would not be appropriate for a local court to mail or otherwise make available to a defendant, printed forms to be executed by the defendant signifying the defendant's request and agreement to plead guilty to a reduced charge in Vehicle and Traffic Law cases. Opinion 96-132 (Vol. XV). The Committee opined that such a practice could adversely reflect on the impartiality of the judiciary in violation of section 100.2(A) of the Rules. 22 NYCRR 100.2(A). The Committee further stated that while it is common practice in many courts to use pre-printed forms to record the proposed plea agreement for submission to the court, for its acceptance or rejection, the court should not be the source or inspiration for the plea agreement. To do so, could lead to the appearance of partiality or predisposition. The use of forms to memorialize plea agreements is appropriate, but the court should be involved with such forms only when the proposed plea is submitted for the court's approval. Opinion 96-132 (Vol. XV).
Here, the prosecutor would have no role to play in providing the defendant with a mechanism to seek to secure a plea agreement, nor is the court singling out a negotiated plea as the appropriate way to proceed in disposing of the defendant's case. The suggested document requires no execution or acknowledgment by the defendant and is, as indicated, merely informational and in no way part of the adjudicative process. Its creation and distribution would merely constitute the exercise of administrative authority "to adopt, amend and rescind forms for the efficient and just administration of [the Criminal Procedure Law]" Crim. Proc. Law §10.40; see also Jud. Law §212(2)(f). And, since the form would list all of the defendant's potential options, including the right to plead not guilty and proceed to trial, there is no danger of the court signifying partiality or predisposition or injecting itself into a decision to be made by the defendant alone as to how to proceed. The use of such a form in accordance with these guidelines is, in our opinion, ethically permissible.