Opinion 19-117

October 24, 2019

Digest:         If authorized by law, a town or village justice may notify criminal defendants of court appearances without simultaneously notifying defense counsel.

Rule:            Judiciary Law § 212(2)(l); CPL 510.43; 22 NYCRR 100.2; 100.2(A); 100.3(B)(6); 100.3(B)(6)(a); 100.3(B)(6)(e); Opinions 19-20; 18-49; 16-140; 13-124/13-125/13-128/13-129; 90-125.

Opinion:

         A town and/or village justice asks if he/she may “ethically contact defendants ex parte and behind the back of defense counsel” pursuant to recent legislation that, according to the judge, “will require the justice courts to notify defendants directly of the date, time and location of each and every court appearance during the pendency of a criminal case.” The legislation goes into effect January 1, 2020.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and 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]). Indeed, a judge must not “initiate, permit, or consider ex parte communications” unless an exception applies (22 NYCRR 100.3[B][6]). For example, a judge may initiate or consider ex parte communications “when authorized by law to do so” (22 NYCRR 100.3[B][6][e]).¹

         We previously said a judge may communicate directly with a represented defendant concerning a court date only if the judge “also communicates simultaneously with the defendant’s lawyer and the adversary” (Opinion 90-125). Here, however, the judge believes newly enacted legislation affirmatively requires him/her to notify defendants directly of upcoming court appearances. In our view, if the ex parte communications described are authorized by law, they are also ethically permissible (see Opinions 16-140; 13-124/13-125/13-128/13-129; 22 NYCRR 100.3[B][6][e]). While we cannot comment on the judge’s interpretation of CPL 510.43 and/or other relevant authorities (see Judiciary Law § 212[2][l]), a judge who acts in accordance with his/her good-faith legal determination concerning a statutory directive for ex parte communications necessarily acts ethically, even if the decision is reversed on appeal (see e.g. Opinions 19-20; 18-49).

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¹ Ex parte communications “for scheduling or administrative purposes” are expressly authorized if (1) they “do not affect a substantial right of any party,” (2) “the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication,” and (3) “the judge, insofar as practical and appropriate, makes provision for prompt notification of other parties or their lawyers of the substance of the ex parte communication and allows an opportunity to respond” (22 NYCRR 100.3[B][6][a]). On the facts presented here, we need not address or consider this provision.