Opinion 17-109

September 7, 2017

Digest:         A judge who has received a copy of a disciplinary complaint letter filed by a litigant’s relative against opposing counsel, but has not read the substance of the letter, has no obligation to disclose the communication. The judge may continue to preside over the case provided the judge believes he/she can be fair and impartial.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(B)(6); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 17-44; 08-54; 07-192; 07-82; 98-144; 96-95; People v Moreno, 70 NY2d 403 (1987).

Opinion:

The inquiring judge is presiding over a contested matrimonial proceeding where one spouse is represented by counsel and the other is appearing pro se with assistance from a non-attorney relative. The judge has received by mail “what appears to be a copy of a letter complaint” filed by the unrepresented spouse’s non-attorney relative against opposing counsel. As the letter is addressed to the attorney grievance committee, the judge did not read the body or substance of the letter. Instead, the judge “placed the unread letter in a sealed envelope” and wrote to the grievance committee for instructions on compliance with their confidentiality regulations. The judge now seeks guidance on his/her obligations under the Rules Governing Judicial Conduct.

A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must 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 (see 22 NYCRR 100.3[B][6]). A judge must disqualify him/herself as required by rule or law (see Judiciary Law § 14; 22 NYCRR 100.3[E][1][a]-[f]) and in any other case where his/her impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). Conversely, where disqualification is not mandatory, the judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).

Whether a judge must disclose a particular ex parte communication depends on its content and context (see Opinion 98-144). For example, a judge must disclose the substance of an ex parte communication to all parties if it includes information about disputed evidentiary facts or other information addressing the merits of the pending case (see Opinions 07-192; 07-82; 96-95).

On the facts presented, we believe Opinion 08-54 is instructive. The inquiring judge was presiding over a contentious multi-year lawsuit. The plaintiff had moved for a default judgment, but was unable to serve the defendant because he/she did not have the defendant’s current address. The judge then received correspondence from the defendant which was “virtually certain to be an impermissible ex parte communication” (id.). As the judge’s usual practice was to return attempted ex parte communications directly to the sender without reading them, the judge did not open the envelope but instead asked the Committee if disclosure was required. We advised that because the judge “has not even reviewed the contents of the correspondence,” he/she had “no ethical obligation to disclose to other parties or counsel either that [the judge] received the correspondence or the return address on the correspondence” (id.). Somewhat analogously, we have also said a judge need not disclose an attempted ex parte communication from a non-party, where the communication merely expresses a view as to how a matter should be decided but “alleges no relevant facts” and “is not considered by the judge” (Opinion 98-144).

Here, the judge states he/she has not read the body of the letter and is thus unaware of its specific contents. The judge thus has no knowledge if it includes any information about disputed evidentiary facts or information addressing the merits of the pending case. On these facts, we conclude the letter should be returned to the sender, and the judge has no ethical obligation to disclose the communication.

The final issue to consider is whether the judge may continue to preside in the case. In Opinion 17-44, the justices of a local court learned that an attorney was under criminal investigation for certain litigation practices that allegedly took place away from the courtroom. The target attorney regularly appeared before the justices, but the justices had no personal knowledge of any impropriety. On those facts, we concluded the judges’ impartiality could not reasonably be questioned (see id.; 22 NYCRR 100.3[E][1]). Accordingly, we said the judges may continue to preside in matters involving the target attorney, provided they conclude, in their sole discretion, they can be fair and impartial in matters where the attorney appears.

As this judge’s impartiality cannot reasonably be questioned based on the contents of a letter he/she has not read (cf. Opinion 17-44), the judge may continue to preside, provided he/she can be fair and impartial.