Opinion 20-195

December 10, 2020

Digest:       (1) A judge need not disclose, in a matter currently pending before the judge, a prosecutor’s ex parte communication asking if the judge would honor a grand jury subpoena concerning a related but now-concluded case, where the communication contained no information pertaining to the merits of the pending matter. (2) The judge may continue to preside unless the judge believes they cannot be impartial.

Rules:        Judiciary Law § 14; 22 NYCRR 100.0(U)-(V); 100.2; 100.2(A); 100.3(B)(6); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 18-43; 17-109; 16-156; 15-53; 14-168; 14-39; 08-54; 08-23; 07-82; 06-169; 98-144; 96-95; People v Moreno, 70 NY2d 403 (1987)

Opinion:

         The inquiring judge is currently presiding over one of “several related, complex civil cases in which the plaintiffs have alleged that their adversaries (and some non-parties) have committed criminal wrongdoing.” The judge has, over the years, “issued several extensive decisions [in those related cases] drawing written conclusions from the evidence before [the judge] about the parties, the facts, and the relevant legal principles.” A prosecutor recently contacted the judge ex parte to ask whether the judge “would honor” a grand jury subpoena to testify about a decision the judge rendered over a year ago in one of the now-concluded cases.¹ All the judge learned from the prosecutor’s ex parte communication “was that there might be a grand jury presentation related to the litigation that has been pending before [the judge], to which a decision [the judge] rendered in a prior, concluded case might be relevant.” Indeed, the conversation “revealed no details about the conduct that the prosecutor believes warrant criminal investigation and potentially prosecution; the identities of the investigation’s subjects or targets; the charges being considered; or the prosecutor’s supporting evidence.” The judge asks if disclosure and/or disqualification is required.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, 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” (22 NYCRR 100.3[B][6]). A pending proceeding is one that has begun but not yet reached final disposition, and an impending proceeding is one that is reasonably foreseeable but has not yet been commenced (see 22 NYCRR 100.0[U]-[V]).

Disclosure

          A judge’s obligation to disclose a particular ex parte communication depends on the communication’s “content, context and circumstances” (Opinion 18-43, quoting Opinion 14-39; see also Opinions 17-109; 08-23; 98-144). If the ex parte communication includes information about disputed evidentiary facts or other information addressing the merits of a case, a judge must disclose the substance of the communication to all parties (see Opinions 07-82; 98-144; 96-95). A judge need not, however, disclose a non-substantive ex parte communication (see Opinions 16-156 [ex parte letter which commended judge for their prior decision on a case]; 98-144 [ex parte communication which expressed the non-party’s viewpoint on how the matter should be decided, but contained no relevant facts]), particularly when the judge concludes they can decide the case without considering it. For example, disclosure was not required where the inquiring judge, who was presiding over a contentious lawsuit, received, but did not open, an ex parte communication from the defendant (see Opinion 08-54). We noted that, where the judge has not even reviewed the substance of the communication, “the judge has no ethical obligation to disclose to other parties or counsel … that he/she received the correspondence” (id.).

         Here, the prosecutor’s ex parte communication to the judge conveyed no factual information whatsoever relevant to the case pending before the judge. Indeed, the prosecutor did not even provide details about the conduct that the prosecutor believes warrants criminal investigation, the identities of the investigation’s subjects or targets, the charges being considered, or the prosecutor’s supporting evidence. As such, the communication did not contain information about disputed evidentiary facts or other information related to the merits of the case, or anything else that could influence the judge in adjudicating the remaining case (and pending motions) in the litigation.

         While we believe that disclosure is not required based on the facts already addressed, we note one additional element which further strengthens our conclusion. The judge is concerned that disclosure “could undermine some of the aims of grand-jury-secrecy rules, [including] preventing witness and juror intimidation, evidence tampering, and flight” or “conversely, disclosure could cause unnecessary distress and reputational harm to subjects or targets of the investigation.” We have previously concluded that where extraordinary circumstances counsel against disclosure, and the judge can decide the matter without reference to the communication, disclosure is not required (see e.g. Opinions 14-39 [where judge could decide case without considering counsel’s ex parte communication that he was “under indictment” and indictment did not relate to the matter pending before the judge]; 08-23 [notwithstanding that it pertained to the merits of the case, disclosure not mandated where letter writer also provided the information contained in the letter to the department of probation and disclosure may result in dangerous consequences to an innocent person]; 98-144 [ex parte communication contained no facts and there was reason to believe disclosure might subject the writer to physical violence]). Here, too, grand jury secrecy concerns provide an additional reason not to disclose this particular communication.

         In sum, we conclude the judge need not disclose this ex parte communication.

Disqualification

         A judge must disqualify him/herself in circumstances required by rule or law (see Judiciary Law § 14; 22 NYCRR 100.3[E][1][a]-[f]) or in any case where the judge’s impartiality might “reasonably be questioned” (22 NYCRR 100.3[E][1]). Where disqualification is not mandatory, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]), and thus may preside, unless the judge doubts their own impartiality in the case (see Opinions 18-43; 15-53).

         Provided the judge can be fair and impartial, we have said that a judge is not ethically required to disqualify after testifying pursuant to a subpoena as a fact witness in an unrelated matter, even though the testimony is adverse to an individual who is a litigant in both cases (see Opinions 15-53 [judge subpoenaed to testify in litigant’s criminal trial about the orders and directives the judge issued in litigant’s civil action]; 14-168 [prosecutor subpoenaed judge to testify in a criminal case to confirm that judge presided in custody proceeding and to identify the parent/defendant’s voice on an audio recording of the custody proceeding]).

         While this judge does not currently know the identities of the investigation’s subjects or targets, the analysis remains the same. Assuming the judge can be fair and impartial, they need not disqualify from the pending civil action due to their prospective testimony in a criminal case about a decision the judge rendered in a related, but now concluded, civil action.

         Of course, the inquiring judge would be required to disqualify if the judge were to obtain extra-judicial knowledge of disputed evidentiary facts in the civil matter pending before him/her (see 22 NYCRR 100.3[E][1][a][ii]; see also Opinion 06-169 [recusal required where judge was contacted by prosecutor and asked to cooperate in a criminal investigation involving a post-nuptial agreement which was the subject of a divorce proceeding currently pending before the judge]) or if the judge were likely to be a material witness in that civil case (see 22 NYCRR 100.3[E][1][e]).

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¹ That is, the proposed grand jury subpoena pertains to a case that is “fully resolved and has not been appealed.”