Opinion 23-138

Short-Form Opinion

December 14, 2023

Question:     Must a judge recuse in a criminal case, after disclosing a letter received ex parte from the victim’s attorney?

Discussion:   Before an initial hearing date in a criminal case, the inquiring judge received a letter from the victim’s attorney, which was addressed to the District Attorney and copied to the court, but not copied to the defense counsel or the defendant.  The letter described the victim’s alleged injuries and offered to “cooperate with respect to the prosecution of this case.”  When the case was called, the judge provided a copy of the letter to defense counsel, who promptly objected to the judge’s continued participation in the case on the basis of the ex parte communication. The judge asks if disqualification is ethically mandated in these circumstances. 

                   We have said that an impermissible ex parte communication, if it occurs, may generally be dispelled by disclosing it to all sides.  This judge did not invite the victim’s ex parte communication and instead made full disclosure when the case was called.  We conclude disqualification is not mandated here, as the substance of the communication does not seem likely to raise any reasonable questions about the about the judge’s impartiality, nor does it seem likely to erode public confidence in the judiciary.  The judge thus need not disqualify in the criminal case, notwithstanding defense counsel’s objection, provided the judge can be fair and impartial.

Enclosed:     Opinion 17-53.