Can a district attorney announce a blanket policy of seeking jail for a certain crime and send judges ex parte letters stating that policy?

Plain-English summary

The committee took up two questions: whether a district attorney may publicly announce a general office policy of recommending jail for all defendants convicted of a particular crime, and whether he may send the same recommendation by ex parte communication to judges in his county. It framed the prosecutor's role through EC 7-13: a prosecutor's duty is to seek justice, not merely to convict, while still being bound by the standards that apply to all attorneys.

On public statements, the committee held that a dignified statement informing the public in advance of the office's general sentencing-recommendation policy is not improper per se. But such statements must be carefully phrased to avoid misleading the public into thinking one solution applies to all cases regardless of material differences in fact patterns (EC 2-5). Statements designed to sway or inflame public opinion, to gain political advantage rather than educate, or to influence or intimidate the judiciary are clearly improper (EC 7-33; Canon 9), and any public statement on sentencing should note the judiciary's discretionary role.

On communications to judges, the committee held that unsolicited communications recommending a general sentencing policy in all such cases can only be deemed ex parte communications to a court, and as such are ordinarily improper (EC 7-35; DR 7-110; N.Y. State 325 (1974); N.Y. City 887 (1975)). The practice would be improper because individual defendants and their counsel might never learn of the prosecutor's prior recommendation to the sentencing judge. The committee noted that under N.Y. Criminal Procedure Law section 380.50 both prosecution and defense have an absolute right to make sentencing recommendations at trial after conviction, and that exercising the right then serves justice by avoiding surprise and permitting the defendant to respond.

Currency note

This opinion was issued in 1975, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (impartiality and decorum toward a tribunal are now governed by Rule 3.5, trial publicity by Rule 3.6, and special prosecutor duties by Rule 3.8). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a DA publicly announce a policy of seeking jail for a given crime?

A: Under this opinion, a dignified statement of general policy is not improper per se, but it must be carefully phrased to avoid suggesting one solution fits all cases, must note the judiciary's sentencing discretion, and must not be designed to inflame opinion or pressure judges (EC 2-5, EC 7-33; Canon 9).

Q: Can the DA send judges letters stating that sentencing policy?

A: Per the opinion, no. Unsolicited communications to judges recommending a general sentencing policy are ex parte communications to a court and ordinarily improper (EC 7-35; DR 7-110).

Q: Why is the ex parte route worse than recommending at sentencing?

A: The committee reasoned that a defendant and counsel might never learn of the prior recommendation, whereas a recommendation made at sentencing under CPL section 380.50 avoids surprise and lets the defendant respond.

Background and rules framework

The opinion applies the then-current New York Code's provisions on prosecutorial duty and communications with a tribunal, EC 2-5, EC 7-13, EC 7-33, EC 7-35, DR 7-110, and Canon 9, alongside the ABA Standards Relating to the Prosecution Function and CPL section 380.50. The current analogues are Rule 3.5 (impartiality and decorum of the tribunal), Rule 3.6 (trial publicity), and Rule 3.8 (special responsibilities of a prosecutor).

Citations and references

Rules of Professional Conduct:

• MR 3.5 (impartiality and decorum of the tribunal; ex parte contact)
• MR 3.6 (trial publicity)
• MR 3.8 (special responsibilities of a prosecutor)
• NY EC 2-5, EC 7-13, EC 7-33, EC 7-35; DR 7-110; Canon 9

Statutes:

• N.Y. Criminal Procedure Law section 380.50 (sentencing recommendations)

Other opinions cited:

• N.Y. State 325 (1974); N.Y. City 887 (1975): ex parte communications to a court

See also

• NY State Bar Op. 424: A county legislator defending criminal cases
• NY State Bar Op. 432: A district attorney on a grievance committee
• NY State Bar Op. 439: A lawyer-inspired news story

Source

• Landing page: https://nysba.org/opinion-420/