Opinion 18-38

May 10, 2018

Digest:         Absent any factors that create an appearance of impropriety, a judge who took over a case on another judge’s retirement due to age may initiate ex parte communications with the retired judge concerning that case and may discuss legal and factual issues with him/her. The judge need not disclose those talks to the parties or counsel.

Rules:          Judiciary Law § 17; 22 NYCRR 100.2; 100.2(A); 100.3(B)(6); 100.3(B)(6)(a)-(d); pt 1200, Rules 1.12(a); 1.12(d)(1); 1.12(d)(1)(ii)-(ii); 1.12(d)(2); Opinions 16-151; 16-136; 15-209.

Opinion:

         The inquiring judge was assigned multiple pending cases from the caseload of another judge who recently reached the mandatory retirement age. Among these matters is a high-profile criminal case. Although the inquirer has that judge’s case files and notes, he/she would also like to discuss “all legal and factual matters” in these cases with him/her. The sitting judge believes the retired judge is not now practicing law, is not serving as a judicial hearing officer or in any other quasi-judicial capacity.

         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 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, unless an exception applies (see 22 NYCRR 100.3[B][6]). Although some exceptions require disclosure or consent (see 22 NYCRR 100.3[B][6][a]-[b], [d]), one exception (22 NYCRR 100.3[B][6][c]) provides simply:

A judge may consult with court personnel whose function is to aid the judge in carrying out the judge's adjudicative responsibilities or with other judges.

         The phrase “or with other judges” does not facially include fully retired judges no longer bound by the Rules Governing Judicial Conduct. We note there may be significant policy issues at stake here, as a fully retired judge who is an attorney may resume the practice of law and is no longer subject to the public comment rule and other limitations designed to promote public confidence in the judiciary (see e.g. Opinions 16-151; 16-136).

         Still, a former judge who is an attorney must comply with applicable attorney ethics rules and statutes, including a blanket prohibition on accepting private employment “in a matter upon the merits of which the lawyer has acted in a judicial capacity” (22 NYCRR 1200, Rule 1.12[a]; Judiciary Law § 17). Indeed, even if the former judge’s law firm is permitted to undertake a representation in the matter, the firm must “prevent the flow of information about the matter between the personally disqualified lawyer and the others in the firm” (22 NYCRR 1200, Rule 1.12[d][1][ii]) and “ensure that the disqualified lawyer is apportioned no part of the fee therefrom” (id., Rule 1.12[d][1][iii]).¹

         In these circumstances, we construe the phrase “other judges” in Section 100.3(B)(6)(c) to include a fully retired judge who is ethically and legally barred from participating in the case as a lawyer due to his/her prior judicial involvement in the matter.

         Thus, for any case this judge has taken over on the other judge’s retirement due to age, he/she may initiate ex parte communications with the retired judge concerning that case and may discuss legal and factual issues pertaining to that case with the retired judge (see 22 NYCRR 100.3[B][6][c]). The judge need not disclose such communications to the parties or their counsel (see id.; cf. Opinion 15-209). In light of the public comment rule (see 22 NYCRR 100.3[B][8]), this judge must instruct the retired judge to keep their discussions confidential.

         Absent a rule change, a judge, whose facts are not identical to these, should seek guidance before consulting with a former judge on a pending or impending case. We do not here consider, for example, the propriety of consulting a former judge who resigned or retired for reasons other than reaching mandatory retirement age or who previously disqualified him/herself from the case about which the sitting judge wishes to consult him/her.

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           ¹ The disqualification extends to the former judge’s law firm unless the firm takes four steps “promptly and reasonably” to screen the judge from the matter and ensure accountability (see 22 NYCRR 1200, Rule 1.12[d][1] [outlining the requirements]) and “there are no other circumstances in the particular representation that create an appearance of impropriety” (id., Rule 1.12[d][2]).