Opinion 07-192

December 6, 2007

Digest:         A judge should not disclose the substance of an ex parte communication that is deemed privileged under CPLR §4503, but should disclose the substance of an ex parte communication about disputed evidentiary facts, or other information which addresses the merits of a pending case.

Rules:          CPLR §4503; 22 NYCRR 100.3(B)(6); Opinions 05-78; 98-144 (Vol. XVII); 96-95 (Vol. XIV).

Opinion:

A judge presiding in a criminal proceeding has received an ex parte communication from the criminal defendant’s former attorney who was substituted by the court after that former attorney failed to appear on three consecutive court dates. This former attorney wrote to the judge to advise the judge that the defendant committed perjury while testifying at an administrative hearing about facts that also are at issue in the instant criminal proceeding. The defendant’s former attorney also opined that the defendant is likely to commit perjury again if he/she testifies at the criminal proceeding. The judge asks if he/she must disclose the letter to the other parties to the criminal proceeding.

Pursuant to section 100.3(B)(6) of the Rules Governing Judicial Conduct, “[a] judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law” (22 NYCRR 100.3[B][6]). Therefore, “[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, . . .” (id.). Depending on the content, context, and circumstances of a particular case, a judge who receives an ex parte communication may be required to disclose the substance of the communication to all the parties and their attorneys (see Opinion 98-144 [Vol. XVII]; 96-95[Vol. XIV]).

For example, in Opinion 05-78, the Committee advised that a judge who learns from an attorney that the attorney’s client threatened to kill the judge and an attorney representing another party to the proceeding must disclose the information to the parties and their attorneys. Similarly, in Opinion 96-95 (Vol. XIV), a judge received a letter from a bar association about a pending proceeding. The writers expressed concern that “a miscarriage of justice may well have occurred and may still be occurring;” discussed the existence of purported inconsistent statements made by the complainant that were not presented to the jury; raised the question of whether the complainant should be charged with perjury; asked the judge to see that justice is done; and stated that no American should serve time for a crime he did not commit. This Committee advised that judge to send the letter to the defendant’s lawyer, the District Attorney and the Presiding Justice of the Appellate Division. In contrast, the Committee advised in Opinion 98-144 (Vol. XVII) that a judge is not ethically obligated to disclose an attempted ex parte communication from a non-party alleging no relevant facts, that merely expresses a view as to how a matter should be decided, and that is not considered by the judge.

Here, the letter the criminal defendant’s former attorney sent to the judge is clearly an ex parte communication (see 22 NYCRR 100.3[B][6]). Whether the judge must disclose it depends on the nature of the information conveyed (see Opinion 98-144 [Vol. XVII]). To the extent the letter includes information about disputed evidentiary facts, or other information addressing the merits of the pending case, the judge should disclose it to the parties and their attorneys (see Opinion 96-95 [Vol. XIV]). The judge should not, however, disclose any information he/she concludes is privileged pursuant to CPLR §4503 - i.e., information which the judge deems to be a confidential communication between an attorney and his/her client (see CPLR §4503; Opinion 98-144 [Vol. XVII]).

Given the nature of the information he/she has learned, the judge also should consider whether he/she can remain impartial in the criminal proceeding now pending in his/her court. If the judge believes he/she cannot remain impartial, recusal is required (see 22 NYCRR 100.3[E][1]).