Opinion 05-81

October 27, 2005

Digest:         A judge may not by telephone or otherwise engage in ex parte communications with complainants in domestic violence actions where the defendant is to be initially arraigned and the complainant is not physically present.

Rules:          CPL 530.11(2)(h); 22 NYCRR 100.3(B)(6).

Opinion:

         A town judge seeks the Committee’s advice on behalf of him/herself and fellow judicial members of the county’s domestic violence task force about whether it is ethically permissible for a judge to communicate by telephone with a domestic violence complainant before the judge initially arraigns the defendant.

         The judge informs the Committee that there are many situations between 11:00 p.m. on Friday and 9:00 a.m. on [Mo]nday when defendants are arrested for domestic violence, and the court is closed. Many arraignments occur late at night or in the early morning. Although the defendant will be arraigned by the judge, the alleged victim is usually not present.

         Given this background, the judge inquires whether the judge may contact the complainant by phone, inform him/her of the various types of orders of protection available, and of the possible bail that may be imposed. The judge also inquires if it would be appropriate to inform the complainants of their right under CPL 530.11(2)(h) to continue the action in either Family Court or concurrently in both Family Court or Criminal Court. 22 NYCRR Section 100.3(B)(6) of the Rules Governing Judicial Conduct, provides in part:

         “A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding, except:

(a) Ex parte communications that are made for scheduling or administrative purposes and that do not affect a substantial right of any party are authorized, provided the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and the judge, insofar as practical and appropriate, makes provision for prompt notification of other parties or their lawyers of the substance of the ex parte communication and allows an opportunity to respond.

         Thus, unless otherwise permitted by statute or rule a judge should not engage in ex parte communications with attorneys, parties, or possible witnesses. This would include complainants in domestic violence proceedings. A court may contact a party or counsel if it is for scheduling and administrative purposes. However, in the present situation, we are not faced with a matter of mere scheduling or administrative considerations. Here, a judge would be contacting the complainant to gain the complainant’s substantive views on whether an order of protection should be granted or a particular level of bail should be imposed. It is thus highly probable the judge will also be informed by the complainant of alleged facts constituting the claims of violence. Such a situation directly affects the merits of the matter, and there is no basis in the rules for permitting a judge to contact the complainant under these circumstances.

         It is therefore the opinion of the Committee that, as to issues concerning bail and orders of protection, or any other matters not directly related to scheduling or administrative considerations, the judge should not contact the complainant. However, the prosecutor or law enforcement officer may communicate with the complainant by telephone, if necessary, and convey the information obtained to the judge in open court in the defendant’s presence. In any event, the judge has at his/her disposal the written complaint and the information in the matter, and perhaps a criminal history and/or a family legal history, which themselves may be sufficient in some cases to reach the necessary determinations, at least on a temporary basis, at this initial stage.

         The Committee also notes that, while it may often be better practice for an appropriate person to immediately contact the alleged victim before the initial arraignment, there is no legal requirement to contact an absent complainant concerning his or her rights under CPL 530.11(2)(h), inasmuch as such rights must first be told to the complainant at his/her “first appearance before the court.” If, however, the complainant is present at the time of the initial appearance, the judge must advise him/her of those rights in the presence of all parties.