Opinion 24-116

September 12, 2024

Digest:  A judge presiding in a family treatment court may engage in ex parte communications with the court’s case managers.  If the content involves outside information obtained from a non-court source, then notice should be given to the parent’s attorney.  Otherwise there is no need to disclose the content of those communications to treatment court participants.

Rules:   22 NYCRR 100.2; 100.2(A); 100.3(B)(6); 100.3(B)(6)(c), (e); Opinions 24-50; 04-88; Admin Order of Chief Admin Judge of Cts AO/142/03.

Opinion:

          The inquiring family treatment court judge works with several case managers funded by a grant from a federal agency.  The judge meets regularly with case managers in preparation for court sessions to get updates and insight into the participating parents’ progress.  The judge asks whether these case managers are considered “court personnel” for purposes of ex parte communications under the Rules Governing Judicial Conduct.

          A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  A judge may “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 (22 NYCRR 100.3[B][6]).  For example, a judge may “consult with court personnel whose function is to aid the judge in carrying out the judge’s adjudicative responsibilities” (22 NYCRR 100.3[B][6][c]) and may also “initiate or consider any ex parte communications when authorized by law to do so” (22 NYCRR 100.3[B][6][e]).

          We have said a drug treatment court judge may engage in ex parte communications with court personnel “concerning information obtained by such personnel,” but should give the defendant’s attorney notice and a summary of the communication (Opinion 04-88).  We have also recognized that treatment court judges are expressly authorized to “initiate, permit or consider ex parte communications with treatment providers, probation officers, law enforcement officials and other members of the drug court team who are not court personnel, provided that the absent party and his or her attorney have consented thereto” (Opinion 24-50, quoting Admin Order of Chief Admin Judge of Cts AO/142/03). 

          Further, we have concluded that treatment court resource coordinators are “court personnel” whose function is to aid the judge in carrying out his/her adjudicative responsibilities (see Opinion 24-50; 22 NYCRR 100.3[B][6][c]).  We therefore concluded that (id.):

A judge presiding in a drug treatment court may engage in ex parte communications with the court’s resource coordinator.  If the content involves outside information obtained from a non-court source, then notice should be given to the defense attorney.  Otherwise, there is no need to disclose the content of those communications to court participants. 

          In our view, the same principles apply to the treatment court’s case managers, and the source of funding described here does not affect the analysis.  That is, we see no reason to apply a different standard simply because these particular court personnel are funded by a federal grant rather than by allocations from the state’s budget. 

          Accordingly, we conclude the inquiring judge may include the grant-funded case managers in ex parte discussions regarding treatment updates for persons subject to treatment court oversight, provided that “[i]f the content involves outside information obtained from a non-court source, then notice should be given to the [participant’s] attorney” (Opinion 24-50).