Can a prosecutor agree to a plea bargain that requires the defendant to donate money to STOP-DWI or a charity, and can the donation be kept from the sentencing judge?

Plain-English summary

The committee addressed five questions about plea bargains in which a criminal defendant agrees, as part of the sentence, to make a financial donation not expressly authorized by statute. All plea bargaining is subject to the prosecutor's duties: under DR 7-103(A) a prosecutor may not institute charges without probable cause, and under EC 7-13 the prosecutor's role is to seek justice, not merely to convict. The committee does not opine on whether any particular disposition is legal; that is the prosecutor's responsibility, and an illegal disposition would also be unethical.

On STOP-DWI donations, the committee sees no ethical objection to a sentence on a reduced charge that includes a donation to the county's statutory STOP-DWI program, where the payment is a legally permissible term and the original charge had probable cause. But the answer changes if the district attorney is also the STOP-DWI coordinator: that dual role creates both a conflict of interest under DR 5-101(A) and an appearance that prosecutorial authority is not exercised in a disinterested manner, because the coordinator helps set the program's budget funded in part by penalties the DA seeks. The committee concludes a district attorney cannot serve as STOP-DWI coordinator.

On donations to a not-for-profit, the committee holds the donation is permissible if legal, the prosecutors handling or supervising the case have no "personal interest" in the organization that reasonably may affect their judgment (DR 5-101(A)), they do not know of another lawyer in the office with such an interest, and use of the organization does not create an appearance of impropriety. A "personal interest" is not limited to financial benefit and turns on the nature, size, and scope of both the organization and the prosecutor's involvement; small or "generic" contributions (United Way, Red Cross) generally do not disqualify. On imputation, the committee notes DR 5-105(D) does not automatically disqualify a prosecutor's office under People v. English unless necessary to prevent actual prejudice, but holds the organization should still be left out where the handling prosecutors know another office lawyer would be disqualified, and that at a minimum they must check whether the district attorney has a disqualifying interest.

On timing, requiring the donation before the plea is entered raises no additional issues. On nonprosecution, the committee concludes a donation may be required in exchange for a dismissal or an agreement not to bring charges on the same terms as for a reduction, since no guilty plea is a required condition. On disclosure, it is unethical to conceal a material term of a disposition from the sentencing court (DR 1-102(A)(4); DR 7-102(A)(3)); the donation is a material term, and the court must have the opportunity to review it.

In practice

Under the New York Code as it stood at the time, the opinion holds that the threshold for any donation term is probable cause and legality, both of which the prosecutor must independently confirm. Where the prosecutor holds a second role tied to the donation's recipient (STOP-DWI coordinator), the committee finds a non-curable conflict and bars the dual role. For charitable donations, the gate is the absence of a disqualifying personal interest in the recipient (the prosecutor's own, a known colleague's, and at minimum the DA's, with appearance-of-impropriety as a backstop). The committee treats concealment of a donation term from the sentencing judge as categorically unethical.

Common questions

Q: Can a plea bargain require the defendant to donate to STOP-DWI?

A: Yes, if probable cause supports the original charge and the donation is a legal term of the sentence, unless the district attorney is also the county's STOP-DWI coordinator, in which case the dual role creates a conflict the committee says bars it.

Q: Can the donation go to a charity?

A: Yes, if legal and the prosecutors handling or supervising the case have no personal interest in the organization that may affect their judgment, they do not know of an office colleague with such an interest, and there is no appearance of impropriety.

Q: Does the prosecutor have to investigate every lawyer in the office for a personal interest?

A: No. The committee holds the rules do not require a full investigation, but the handling prosecutors must at least determine whether the district attorney has a personal interest that would create an appearance of impropriety; broader checking depends on the facts.

Q: Can the donation be kept from the sentencing judge?

A: No. The committee holds concealing a material term of the disposition from the court violates DR 1-102(A)(4) and DR 7-102(A)(3); the court must be able to review the donation term.

Background and rules framework

The opinion applies New York's former Code of Professional Responsibility. DR 7-103(A) and EC 7-13 frame the prosecutor's special duties (the subject of Model Rule 3.8). DR 5-101(A) governs personal-interest conflicts (a facet of Model Rule 1.7), and DR 5-105(D) governs imputed disqualification, applied to prosecutors' offices through People v. English (the imputation principle of Model Rule 1.10). DR 1-102(A)(4) and DR 7-102(A)(3) bar dishonesty and concealment from the court (analogous to Model Rule 8.4 and the candor duties). DR 1-102(A)(3) and DR 7-102(A)(7)-(8) make illegal or fraudulent conduct unethical.

Citations and references

Rules of Professional Conduct:

• MR 3.8 (special responsibilities of a prosecutor); NY DR 7-103(A), EC 7-13
• MR 1.7 (personal-interest conflicts); NY DR 5-101(A)
• MR 1.10 (imputed disqualification); NY DR 5-105(D)
• MR 8.4 (dishonesty; concealment); NY DR 1-102(A)(3), (4), DR 7-102(A)(3)

Cases:

• Cowles v. Brownell, 73 N.Y.2d 382 (1989), a prosecutor must drop unprovable charges without exacting a price
• People v. English, 88 N.Y.2d 30 (1996), imputed disqualification of a DA's office requires actual prejudice or a substantial risk of abuse of confidence
• People v. Farrar, 52 N.Y.2d 302 (1981), the court must determine the appropriateness of every sentence, including a plea bargain
• Morrissey v. Virginia State Bar, 448 S.E.2d 615 (Va. 1994), concealing a charitable-contribution plea term from the court violated the dishonesty rule

Other opinions cited:

• N.Y. State 683 (1996): prosecutors must avoid activities that interfere with disinterested service and the perception of fairness
• N.Y. State 479 (1978): illegal conduct is unethical

See also

• NY State Bar Op. 821: Prosecutor's threat of criminal prosecution to aid a civil claim
• NY State Bar Op. 1098: Prosecutor conditioning a plea on an ineffective-counsel waiver
• NY State Bar Op. 772: Threatening charges to gain advantage in a civil matter

Source

• Landing page: https://nysba.org/ethics-opinion-770/