Opinion 12-128

September 13, 2012

Digest:         A judge need not disclose that a party to pending litigation has filed an ethics complaint against a court-appointed expert, where the judge learned of the complaint when an investigator from the disciplinary authority requested a copy of the expert’s confidential report.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(B)(6); Opinions 08-23; 07-82; 98-144 (Vol. XVII).

Opinion:

         A judge who is currently presiding in a trial asks whether he/she must disclose that a party to the litigation has filed a complaint with a professional disciplinary office against a court-appointed forensic expert. The judge explains that he/she became aware of the complaint after the expert testified, when an investigator from the office wrote to the judge to request a copy of the expert’s confidential report. The judge states he/she did not communicate directly with the investigator. Rather, at the judge’s direction, a member of the judge’s staff referred the investigator to the Office of Court Administration’s general counsel. There is no indication in the inquiry that the judge has seen a copy of the complaint or is even aware of the basis of the complaint.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must 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 (see 22 NYCRR 100.3[B][6]). Thus, a judge is generally prohibited from initiating, permitting, or considering ex parte communications or other communications made to the judge outside the presence of the parties or their lawyers concerning a pending proceeding (see id.).

         The Committee has advised that “[a] judge is not ethically obligated to disclose an attempted ex parte communication from a non-party which alleges no relevant facts, but merely expresses a view as to how a matter should be decided, and which is not considered by the judge” (Opinion 98-144 [Vol. XVII]; see also 22 NYCRR 100.3[B][6]).

         Here, the communication from the non-party is even less relevant to the issues before the judge, as the non-party disciplinary authority has not expressed a view about how the judge should decide the matter before the judge, but has instead merely requested a copy of an expert report. The mere fact that a party to pending litigation has apparently filed an ethics complaint against a court-appointed expert with a disciplinary authority is not, without more, a relevant fact requiring disclosure (see Opinions 07-82 [judge need not disclose receipt or content of letter from party “if it addresses only the lawyer’s conduct and/or relationship with the client”]; 98-144 [Vol. XVII] [disclosure not required for irrelevant ex parte communication]). It appears that the inquiring judge will be able to decide any pending issues without considering the non-party’s communication; indeed, it is difficult to see how the judge’s general awareness of the complaint’s existence could in any way affect the judge’s decision in the matter before the judge (cf. Opinion 08-23 [judge need not disclose ex parte communication that may result in dangerous consequences to individual, where the judge is able to decide pending issues without considering the communication]).

          Accordingly, disclosure is not required.