Opinion 02-49

April 18, 2002

Digest:         It is not improper for a judge to initiate a letter to a represented defendant and the defendant’s attorney for the sole purpose of notifying both the attorney and the defendant of an upcoming appearance date.

Rules:          22 NYCRR 100.3(B)(6)(a); Opinion 99-82 (Vol. XVIII); Matter of Smith, N.Y.S. Commission on Judicial Conduct, June 29, 1987

Opinion:

         A Town Justice asks if it is proper for the court to notify both the defendant and the defendant’s attorney of upcoming appearance dates in the court’s criminal part. The judge notes that there is a concern when warrants are issued ordering the arrest of a defendant or when bail is revoked and only the defendant’s attorney, and not the defendant him/herself has received written notice of the date.

         A judge may not initiate ex parte communications directly with litigants who are represented by counsel, outside of the presence of counsel, concerning the merits of the litigation before the judge. 22 NYCRR 100.3(B)(6); Opinions 99-82 (Vol. XVIII); Matter of Smith, N.Y.S. Commission on Judicial Conduct, June 29, 1987. However, the Rules Governing Judicial Conduct do except ex parte communications for scheduling and administrative purposes from the prohibitions. 22 NYCRR 100.3(B)(6)(a). Since the communications in question are solely are ministerial and administrative in nature, involve only scheduling and do not involve the merits of the case, they clearly fall within the exception.

         Therefore, it would not be improper for a judge to initiate a letter to a represented defendant and the defendant’s attorney for the sole purpose of notifying both the attorney and the defendant of an upcoming appearance date.