Opinion 24-117
September 12, 2024
Digest: Provided no adverse action is contemplated against the treatment participant and both the prosecutor and defense counsel are given notice and a reasonable opportunity to participate, a judge may conduct treatment court sessions with only the participant present. When engaging in discussions with a treatment court participant in the absence of counsel, the judge may discuss the participant’s progress and other matters pertaining to treatment court, without discussing the underlying criminal case. If the judge believes that matters raised in these discussions could potentially trigger adverse consequences, the judge should ensure that defense counsel is present before addressing them.
Rules: 22 NYCRR Part 100, Preamble; 100.2; 100.2(A); 100.3(B)(4), (7), (12); 100.3(B)(1); 100.3(B)(6); 100.3(B)(6)(d)-(e); Admin Order of Chief Admin Judge of Cts AO/142/03; Opinions 24-50; 13-124/13-125/13-128/13-129; 04-88.
Opinion:
A judge who presides in a drug treatment court asks if it is ethically permissible to conduct proceedings in the absence of a prosecutor and/or a treatment court participant’s counsel. The judge notes that the court sessions are scheduled to follow a “staffing meeting” which is “attended by members of the treatment court team (which include a representative of the public defender’s office and the district attorney’s office).”[1] After the staffing meeting, once the court session begins, “each participant who is present comes up to the podium, signs in, and we discuss the participant’s recovery progress and how they are doing in general,” including “personal matters that are applicable to recovery and building recovery capital.” The judge emphasizes that “[t]he underlying matter (i.e., criminal case) is not discussed.” As clarified by the judge, we understand that occasionally the prosecutor or public defender or a participant’s privately retained defense counsel “fails to attend a particular session of treatment court” notwithstanding their awareness of both the staffing meeting and the court session.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must “be faithful to the law and maintain professional competence in it” (22 NYCRR 100.3[B][1]). 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, “with the consent of the parties” a judge may confer separately with the parties and their lawyers on agreed-upon matters (22 NYCRR 100.3[B][6][d]). A judge may also “initiate or consider any ex parte communications when authorized by law to do so” (22 NYCRR 100.3[B][6][e]).
Treatment courts in New
York involve “a dramatic intervention by the court” in an effort to break the
cycle of addiction and recidivism (https://ww2.nycourts.gov/courts/
problem_solving/drugcourts/overview.shtml). In essence, eligible
“non-violent addicted offenders are given the option of entering voluntarily
into court-supervised treatment” (id.). When they do so, “[t]he rules
and conditions of participation are clearly stated in a contract entered into
by the defendant, the defense attorney, the district attorney, and the court” (id.).
We set forth key principles relating to ex parte communications in treatment
courts in Opinions 04-88 and 24-50. As we explained in Opinion 04-88
(citations omitted):
[W]e must first point out the special circumstances inherent in a drug court setting which are not necessarily present in an ordinary criminal proceeding in the context of a discussion about ex parte communications. A drug court proceeding is predicated upon an ongoing, interactive relationship between defendant, the drug court team and the court. That fact alone distinguishes it from the usual criminal proceeding structure of plea, trial, and sentence which often does not involve evaluation and consideration of a defendant’s present activity between the proceeding’s beginning and end. However, inherent in [the] drug court relationship is the continuing exchange of information among the various participants virtually always including court personnel who are not drug court team members. It is only through such interchange that the salutary purposes of the program can be achieved. At the same time, achieving those goals cannot be accomplished at the expense of the defendant’s legal rights, which include the protections afforded vis a vis ex parte communications. As stated in the first sentence of section 100.3(B)(6) of the Rules Governing Judicial Conduct, “A judge shall 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.” It is against this background, which includes the Rules Governing Judicial Conduct, the Administrative Orders referred to herein, and the Guidelines that we consider the questions posed by the inquirer.
Moreover, as we stated in Opinion 24-50:
Judges presiding in treatment courts 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” (Admin Order of Chief Admin Judge of Cts AO/142/03). We subsequently advised that 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 (see Opinion 04-88).
Guided by those key principles we address a different issue than those raised in Opinions 24-50 and 04-88, not ex parte communications with treatment court personnel, but rather direct communication between the judge and the treatment court participant/defendant in the absence of one or both counsel. In this scenario, we note that absence of the prosecution may raise questions of ex parte communications; absence of defense counsel does not. We cannot address legal questions, such as whether or when a right to counsel may attach or be waived in the treatment court context. Nonetheless, as a matter of ethics, a judge must be sensitive to fundamental fairness (see generally 22 NYCRR 100.2[A]; 100.3[B][4], [7], [12]).
Given that the prosecution and/or defense counsel may sometimes choose not to appear at treatment court sessions, we find guidance in Opinion 13-124/13-125/13-128/13-129, where we considered whether it is ethically permissible to conduct an arraignment ex parte if the defendant is represented by counsel pursuant to a county’s new counsel-at-arraignment program, but the prosecutor does not appear. We recognized “the possibility that a local prosecutor might seek to maintain the status quo by declining to appear or otherwise participate in arraignments at which indigent defendants will be represented through the program” (id.). In the course of our analysis, we reasoned that (id. [citations omitted]):
a district attorney’s office doubtless has a number of options to provide for a representative to participate in arraignments on learning of the counsel-at-arraignment program procedures. For example, the district attorney might, as the public defender has done, designate one or more assistant district attorneys for the law enforcement officer accompanying the defendant to contact on a case-by-case basis; might authorize the accompanying law enforcement officer to serve as the prosecutor’s representative; or might waive the right to appear or participate. Because the Rules Governing Judicial Conduct are “rules of reason,” the Committee believes that a judge would be justified in treating the district attorney’s failure to make any reasonable effort to provide for a representative to participate in or attend the arraignment as “consent” to conduct the arraignment ex parte with defense counsel assigned pursuant to the program.
Therefore, provided that the district attorney’s office is on notice that the counsel-at-arraignment program is in effect, and that indigent defendants may now have counsel in instances where they previously did not, a judge may treat a district attorney’s failure to send or designate a representative to attend or participate in such arraignments, whether by telephone or otherwise, as implied consent by the district attorney for the judge to conduct such arraignments ex parte with the defense counsel assigned pursuant to the counsel-at-arraignment program, within the meaning of the Rules Governing Judicial Conduct.
We are mindful that participation in these interventional courts is permitted only pursuant to agreed-upon terms and conditions, often post-plea; the treatment court judge is not expected to make determinations of guilt on the underlying criminal case. While the judge clearly has the power to take actions adverse to the treatment court participant, presumably the judge does not commence every session with the expectation of taking such actions, and many sessions may proceed without triggering any potential adverse action. Thus, this is a court where a prosecutor may either decline or fail to participate and the defense counsel may likewise waive their appearance with the approval of the participant.[2] Provided no adverse action is contemplated against the participant, and the prosecutor and defense counsel have notice of the treatment court sessions or meetings and have a reasonable opportunity to appear or otherwise participate, we conclude that the judge may treat either side’s failure to make any reasonable effort to provide for a representative to participate in or attend as “consent” to conduct the session ex parte with the treatment court participant.
When engaging in ex parte discussions with a treatment court participant in the absence of counsel, the judge may discuss the participant’s progress and other matters pertaining to treatment court, without discussing the underlying criminal charges. However, if the judge believes that matters raised in these discussions could potentially trigger adverse consequences, the judge should ensure that defense counsel is present before addressing them.
[1] The judge clarified by telephone that privately retained counsel are also invited to the relevant staffing meetings for their clients.
[2] We note that even privately retained defense counsel may be able to designate another partner, associate or an of-counsel attorney to appear; or might waive the right to appear or participate. Likewise, a district attorney or public defender’s office will have similar options.