Opinion 19-08

January 31, 2019

Digest:         A judge may consult ex parte with duly elected or appointed judges, even if they preside in courts other than the Unified Court System, concerning cases before him/her. In doing so, the judge should make reasonable efforts to preserve confidentiality.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(B)(6); 100.3(B)(6)(a)-(d); 100.6(C); Opinion 18-38.

Opinion:

         The inquiring judge asks to consult ex parte with his/her former mentor, who is fully retired from the Unified Court System and now presides in a tribal court. Accordingly, the judge asks if he/she may do so under the exception permitting a judge to “consult ... with other judges” ex parte about a case before him/her (22 NYCRR 100.3[B][6][c]).

         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.

         We previously considered the phrase “or with other judges” in Opinion 18-38. Although this phrase “does not, on its face, include fully retired judges who are no longer subject to the Rules Governing Judicial Conduct” (id.), we construed it “to include a fully retired judge who is ethically and legally precluded from participating in the case as an attorney because of his/her prior involvement in the case as a judge” (id.). However, because a fully retired judge “is no longer subject to the public comment rule and other limitations designed to promote public confidence in the judiciary” (id.), we said the inquiring judge “should also ask the retired judge to agree to keep their discussions confidential” (id.).

         Here, the question is whether “other judges” includes sitting judges of other sovereign jurisdictions, who are not subject to our state’s Rules Governing Judicial Conduct. We conclude that it does. The language of the rule is certainly broad enough to encompass duly elected or appointed judges who preside in other state courts, in the federal courts, or in tribal courts.¹ Such judges are apparently vested with authority similar to that exercised by judges of the Unified Court System, and are, we assume, all likewise subject to their own rules of judicial ethics “designed to promote public confidence in the judiciary” (Opinion 18-38).²

         We conclude this judge may consult ex parte with sitting judges who sit in courts other than the Unified Court System, concerning cases before him/her. In doing so, the judge should use discretion and make reasonable efforts to preserve confidentiality. For example, the judge might ask the other judge to keep their discussions confidential and/or withhold the parties’ names and other identifying information. However, we leave it to the judge’s sole discretion to decide what steps are reasonable in light of his/her overall relationship with another judge.

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¹ We note that the Rules Governing Judicial Conduct distinguish between “judges” and “administrative law judges” (see 22 NYCRR 100.6[C]).

² See e.g. Code of Conduct for United States Judges; Oneida Tribal Judiciary Canons of Judicial Conduct; [New Jersey] Code of Judicial Conduct.