It Is Ethical For A Defendant  To Donate to a Charitable Organization As Part Of A Plea Bargain: NYSBA Ethics Opinion 770

In the criminal justice system, plea bargaining discussions happen in nearly every case. Practically speaking, a plea bargain balances efficiency, fairness, and judicial economy.

What does a defense lawyer say when a client, understandably anxious about the consequences of a criminal charge, asks:

“What if I make a donation to a charity? Can that help resolve the case?” Is that proper?

Sometimes the idea comes from a client hoping to avoid harsher penalties. Other times, it surfaces during plea discussions. Either way, it raises an important issue under New York legal ethics.

According to Opinion 770, the answer is Yes, you may ethically condition a plea agreement on a defendant making a donation to a charitable organization. However, this is much different than buying your way out of a criminal case and this analysis sits at the heart of New York State Bar Association Ethics Opinion 770, that explores the ethical boundaries of such arrangements. Read the full opinion.

What the Ethics Rules Actually Say

The NYSBA Committee on Professional Ethics concluded that a prosecutor may include a  charitable donation as part of a plea agreement if certain criteria are satisfied:

  1. Probable cause supports the charges, and the plea is otherwise lawful.
  2. The donation is directed to an appropriate not-for-profit organization.
  3. There is no conflict of interest or appearance of impropriety with the prosecutor’s office and the not-for-profit organization.

How a Defense Lawyer Approaches This

When this issue comes up, our job is to protect the client and explore all ethical options to a case resolution. That means Rejecting anything that resembles “pay-for-outcome” justice, ensuring any proposed condition is tied to a legitimate legal resolution, and vetting any organization involved for conflicts with the prosecutor’s office.

Let’s be clear about something, a criminal case cannot be bought off. Any resolution must still be grounded in valid charges supported by probable cause, a lawful plea agreement and a legitimate not-for-profit that no one in the DA’s office has a professional stake in.

The Bottom Line

At first glance, requiring a charitable donation might seem like a creative, or even beneficial, alternative to traditional penalties. But Ethics Opinion 770 does not prohibit creativity in plea bargaining and charitable donations may have a place in negotiated resolutions.