Opinion 09-71

March 12, 2009

Digest:         In a situation where a judge disclosed the contents of an ex parte conversation to all counsel and parties, addressed disqualification and discussed contacting the Administrative Judge for guidance, whether or not the judge initially disqualified him/herself is a factual determination to be made by the judge. A question concerning whether a judge has the authority to change his/her mind regarding a previously determined disqualification is a legal question outside of the authority of this Committee to address. A judge should exercise his/her discretion regarding whether or not the judge need disqualify him/herself after receiving an ex parte communication about a case pending before the judge.

Rules:          22 NYCRR 100.3(B)(6); 100.3(E)(1)(a)(i); 101.1; Opinions 99-78; 05-78; 07-82; 08-90; People v. Moreno, 70 N.Y.2d 403 (1987); Corradino v. Corradino, 48 N.Y.2d 894, 895 (1979).Judiciary Law section 14

Opinion:

         In the course of a social conversation, the inquiring judge, received ex parte information from an uninvolved third party concerning a previous matrimonial proceeding involving a defendant and a witness in a criminal proceeding pending before the judge. The judge disclosed the conversation to all counsel and parties at the next appearance, addressed disqualification and discussed contacting the Administrative Judge for guidance. The attorneys in the proceeding disagree as to whether or not the judge did, in fact, disqualify him/herself and if so, whether remittal of disqualification should be effectuated.

         The judge provides a copy of the disclosure transcript and seeks this Committee’s guidance regarding whether or not the judge did in fact disqualify him/herself and if disqualification is required in this circumstance.

         It is the determination of this Committee that, whether or not the judge initially disqualified him/herself is a factual determination to be made by the judge based upon the judge’s knowledge of his/her own intentions at the disclosure proceeding. Should the judge determine that he/she has, in fact, disqualified him/herself, a question regarding whether or not a judge has the authority to change his/her mind regarding a previously determined disqualification is a legal question outside of the authority of this Committee to address. 22 NYCRR 101.1.

         Regarding the ex parte communication made to the judge, the Rules Governing Judicial Conduct (Rules) prohibit a judge from initiating, permitting, or considering ex parte communications, or considering 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); 100.3(E)(1)(a)(i); Disclosure of the ex parte communication to the parties and counsel in this proceeding was appropriate. Opinions 05-78; 07-82; 08-90.

         With respect to recusal based upon the ex parte communication, the Rules require that a judge disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including where the judge has a personal bias or prejudice concerning a party. 22 NYCRR 100.3(E)(1)(a)(i).

           Based upon the information provided, it does not appear that there is a showing of grounds for mandatory disqualification under section 14 of the Judiciary Law. Nor does the judge indicate that as a result of the foregoing ex parte communication that the judge has acquired a personal bias or prejudice concerning a party. 22 NYCRR 100.3(E)(1)(a)(i). Opinions 99-78; 05-78. Under such circumstances, as stated by the Court of Appeals in People v. Moreno, 70 N.Y.2d 40[3] (1987), the trial judge ‘is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court . . .’ 70 N.Y.2d at 405. But this does not mean that a judge, in any particular situation presented, need not consider whether it might be ‘the better practice for the court to [disqualify] itself and thus to maintain the appearance of impartiality.’ Corradino v. Corradino, 4[8] N.Y.2d 894, 895 (1979). Opinion 05-78. Accordingly, the judge should exercise his/her discretion regarding disqualification and should be guided by the aforesaid considerations. Opinion 05-78.