Opinion 13-32

March 14, 2013

Digest:         A judge may obtain the advice of a disinterested expert on the law with respect to a legal issue that is not currently before the judge but which the judge anticipates may come before him/her in the future.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(B)(6); 100.3(B)(6)(b); Opinion 89-87 (Vol. IV).

Opinion:

         The inquiring judge asks whether he/she may consult with a disinterested expert on the topic of prosecutorial discretion, “independent of any particular case.” The judge explains that he/she is concerned about a prosecutorial practice that the judge has previously observed in his/her court, and the judge would like to consult with the expert before the situation recurs, so that he/she will be ready “when the issue arises in a particular case.”

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always 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 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 or impending” proceeding (id.). Nevertheless, a judge may obtain the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and a copy of the advice if a copy of such advice is given in writing; the substance of the advice if it is given orally, and affords the parties reasonable opportunity to respond (see 22 NYCRR 100.3[B][6][b]).

         The initial question presented is whether the requirements of 22 NYCRR 100.3(B)(6)(b) apply where, as here, a judge wishes to consult with a disinterested expert on the law with respect to a legal issue that the judge anticipates may come before him/her in the future.¹ By its terms, the rule applies only to “a proceeding before the judge” (22 NYCRR 100.3[B][6][b]), and the inquiring judge has indicated that no such proceeding is pending before him/her. The Committee notes that it would be literally impossible for the judge to comply with the requirements of the rule at this time under the circumstances presented, because there are no actual, identifiable “parties” to whom the judge could give notice or an opportunity to respond (see 22 NYCRR 100.3[B][6][b]).

         This conclusion is further buttressed by consideration of the overall context of the ex parte communications rule, because ex parte communications are defined only with respect to a “pending or impending” proceeding (see 22 NYCRR 100.3[B][6]). It appears that, under the specific circumstances presented, there is no way for the judge to discern the identity of the criminal defendants who will eventually be arrested and arraigned and may, thereafter, possibly be subject to the prosecutorial practice in question. As it appears from the inquiry that there is no identifiable pending or impending proceeding involving the legal issue at the time the judge consults the expert, the Committee believes that the judge’s proposed communication with a disinterested legal expert cannot properly be considered an ex parte communication with respect to a “pending or impending proceeding” within the meaning of the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[B][6]).

         Accordingly, the Committee concludes that the requirements of Rule 100.3(B)(6)(b) do not apply if the judge consults with a disinterested expert on the law with respect to a legal issue that is not currently before the judge, and is not the subject of a pending or impending proceeding with identifiable parties. Under the circumstances, if the prosecutorial practice at issue thereafter arises in a case before the judge, the judge need not disclose that he/she previously consulted a disinterested expert on the subject.

         However, the judge remains free to make such a disclosure, in his/her sole unfettered discretion, if he/she wishes to do so.

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     ¹ The Committee notes that the issue presented here is one of first impression and involves a provision that the Committee has very rarely had occasion to construe (see Opinion 89-87 [Vol. IV] [quoting a prior version of the rule]).