Opinion 08-62

June 6, 2008

Digest:         The Advisory Committee cannot advise an inquiring judge where the ethical issues raised within the inquiry are couched within larger legal issues which must first be determined by the inquiring judge.

Rules:          22 NYCRR 100.2(A); 100.3(B)(1); 100.3(B)(6); Opinions 07-192; 04-123.

Opinion:

         Defense counsel in a criminal proceeding (hereafter “defense counsel”) asked the presiding judge to relieve him/her from the representation. Defense counsel explained to the judge ex parte that a former client recently admitted, in confidence, that he/she pre-arranged with the police to stop a particular vehicle in which the defendant was a passenger so that the defendant could be arrested. If the former client’s story is correct, the police lied to the grand jury about why they stopped the vehicle. Defense counsel asserts that a continuing attorney-client privilege prevents him/her from revealing this information to current counsel or the prosecutor “and expected that [the judge] would not disclose it either.” The judge, on the one hand, considers the information to be significantly exculpatory, but, on the other, believes it might potentially be covered by a “lingering attorney-client privilege.” Consequently, the judge inquires whether he/she may or must disclose it to the prosecutor, defendant and defendant’s newly appointed counsel in the interest of justice.

         The Rules Governing Judicial Conduct provide that 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” (22 NYCRR 100.3[B][6]). Depending on the content, context, and circumstances of a case, a judge who receives an ex parte communication may be required to disclose its substance to all parties and attorneys (see Opinion 07-192).

         Here, the judge has determined that the ex parte information is significantly exculpatory for a criminal defendant. In the Committee’s view, the resolution of this inquiry turns on additional legal determinations to be made by the judge.

         First, the judge should determine whether the significantly exculpatory material at issue is protected by the attorney-client privilege. If it is privileged, “the issue of attorney-client confidentiality ... presents a legal question, not a question of judicial ethics” (Opinion 04-123 ). If, however, the judge determines that the privilege does not apply, the judge should disclose the information (Opinion 07-192), even if defense counsel claims that the information is protected by the attorney-client privilege and expects the judge to maintain confidentiality.

         Second, if the judge determines the significantly exculpatory material is privileged, the judge should further determine whether he/she is nonetheless legally permitted or required to disclose such information. If the judge determines, under the facts and circumstances of the case, that he/she may or must legally disclose the exculpatory information even though privileged, the judge may ethically do so. However, if the judge determines he/she is legally bound to keep the exculpatory information confidential, that is the ethically appropriate course of action (see 22 NYCRR 100.2[A] [“[a] judge shall respect and comply with the law”]; 100.3[B][1] [“[a] judge shall be faithful to the law” and “not be swayed by partisan interests, public clamor or fear of criticism”]).

         Although the inquiring judge did not ask about recusal, under the particular and unique circumstances presented, he or she should also consider whether it is appropriate to continue sitting on this case.