Opinion 18-43

March 29, 2018

Digest:         (1) A judge is not disqualified merely because a litigant’s lawyer sent a complaint to the Commission on Judicial Conduct and copied the judge, if the Commission itself has not issued a formal written complaint, and the judge decides he/she can remain fair and impartial. (2) Where the complaint was sent to the judge ex parte, but all disputed information on the merits is on the record and known to counsel and parties, the judge need not disclose the ex parte letter if he/she is confident he/she can decide the case impartially without considering it.

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); 7000.1(g); Opinions 17-109; 16-129; 16-16; 15-218; 14-121; 14-39; 11-64; 09-191; 09-136; 08-54; 08-23; 07-192; 07-82; 02-96; 98-144; 97-102; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A judge asks about his/her obligations in a case where an attorney who has moved for the judge’s recusal also sent the judge a copy of his/her complaint letter to the Commission on Judicial Conduct. It summarizes and refers to documents and testimony in the record. The judge asks if he/she may continue to preside in the case and, if so, must he/she disclose the ex parte letter.

         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]). Here disqualification is not mandated under specific provisions of the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14). Thus the key issue is whether the judge’s impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1]). If not mandated by this objective test, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]), and thus may preside, unless he/she doubts his/her own impartiality in the case (see Opinions 16-129; 11-64). A judge also 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” (22 NYCRR 100.3[B][6]). Therefore, a “judge shall 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 (id.).

         A litigant’s or attorney’s filing a complaint with the Commission on Judicial Conduct does not, by itself, require a judge’s disqualification, provided the judge concludes, in his/her discretion, he/she can be fair and impartial (see Opinions 16-129; 15-218; 09-136). After all, if such filings necessitated recusal, litigants and counsel could easily disrupt the court process through “judge shopping” (see Opinions 16-129; 16-16; 15-218; 14-121). Thus, we have said disqualification is not required unless and until the complaint results in the additional step of the Commission’s issuing a formal complaint (see 22 NYCRR 7000.1[g]). Then, despite the judge’s belief he/she can be fair and impartial, the judge must recuse from cases involving the complainant (see Opinions 16-129; 14-121 fn 2; 09-191; 02-96; 97-102).

         Here, the judge received a letter from a litigant’s lawyer sent to the Commission on Judicial Conduct. Assuming the Commission has not issued a formal written complaint, the judge may preside if, in his/her discretion, he/she believes he/she can be fair and impartial.

         Generally, a judge must disclose to all sides the substance of an ex parte communication if it includes information about disputed evidentiary facts or other information addressing a case’s merits (see Opinions 17-109; 07-192; 07-82; 98-144). But disclosure is not an absolute requirement; it depends on “the content, context and circumstances” of the particular communication (Opinion 14-39; see also Opinions 08-23; 98-144). Thus, in a few instances, we have said it is not necessary to disclose an ex parte communication if the judge decides he/she can decide the case without considering that communication.

         For example, we did not require disclosure where the judge received an envelope with the defendant’s return address and returned it to the sender unopened (see Opinion 08-54 [noting that plaintiff was seeking defendant’s current address to serve a motion for default judgment]); where disclosure might result in dangerous consequences to an innocent individual (see Opinion 08-23 [noting that the letter writer asserted that probation department personnel were already aware of the alleged facts]); where privileged information would be disclosed (see Opinion 07-82 [“A letter addressing only a lawyer’s conduct and/or a lawyer’s relationship to the client does not compromise the opposing party’s right to be heard”]); where an attorney revealed to the judge ex parte that he/she was under indictment (see Opinion 14-39 [“Assuming that the indictment does not relate to the matter before the judge”]); or where the ex parte communication revealed no relevant facts, but merely expressed a view about how the matter should be decided (see Opinion 98-144). In each instance, provided the judge could decide the case ignoring the ex parte communication, we found there were countervailing considerations that allowed the judge to remain on the case without disclosing the communication.

         Here, the judge has decided he/she can be fair and impartial and can hear the case without considering the ex parte complaint letter. Ordinarily, disclosure would still be required had the letter included disputed evidentiary facts. Here, however, the judge says the disputed evidence and its sources are not new. Instead, they are part of the record and known by all parties and counsel.¹ Thus, since the ex parte letter provides no new disputed evidentiary facts or other information on the case’s merits, we believe none of the parties will be advantaged or disadvantaged by non-disclosure.

         Under these circumstances, the judge need not disclose the letter provided he/she determines he/she can decide the pending issues without taking into account the ex parte communication.

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¹ Indeed, even the attorney’s subjective views on the propriety of the judge’s conduct, which are not themselves disputed evidentiary facts that would warrant disclosure (cf. Opinions 07-82 [litigant’s view of his/her lawyer’s conduct and/or the attorney-client relationship]; 98-144 [non-party’s view of how the judge should decide the case]), are already known to all through his/her motion to disqualify the judge.