Opinion 24-155

October 30, 2024

Digest:  A judge may consult a disinterested expert on the law regarding a legal issue that is currently before the judge, provided the judge gives notice to the parties of the expert consulted, provides a copy of such advice if the advice is given in writing or the substance of the advice if it is given orally, and affords the parties a reasonable opportunity to respond.  The judge must exercise caution to ensure that the judge does not delegate judicial decision-making to the expert, since the expert should be consulted only on the law and not on the outcome of the legal issue.

Rules:   22 NYCRR 100.2; 100.2(A); 100.3(B)(6); 100.3(B)(6)(b); Opinion 15-127; 14-137; 13-32; 09-211.

Opinion:

          The inquiring judge asks if he/she may consult with a “legal expert who has published a leading treatise dealing with the subject matter in question” in connection with a legal issue in a pending case.  The judge explains that the issue involves “the quantum of proof necessary to show” an element of the charged offense by “circumstantial evidence.” 

          A judge must always avoid even the appearance of impropriety and must act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]).  A judge 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” (see 22 NYCRR 100.3[B][6]).  Thus, a judge is prohibited from initiating, permitting, or considering ex parte communications or “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 (id.).  One such exception is Section 100.3(B)(6)(b), which states:

A judge may obtain the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and a copy of such advice if the advice is given in writing and the substance of the advice if it is given orally, and affords the parties reasonable opportunity to respond.

          We have previously advised that a judge may obtain the advice of a disinterested expert on the law with respect to a legal issue that is not currently before the judge but which the judge anticipates may come before him/her in the future (see Opinion 13-32).  In that instance, we concluded the requirements of Rule 100.3(B)(6)(b) do not apply if the judge consults with a disinterested expert on the law with respect to a legal issue that is not currently before the judge and is not the subject of a pending or impending proceeding with identifiable parties (id.).

          Here, by contrast, as the legal question involves a specific case that is currently pending before the inquiring judge, we look to the conditions specified in the exception.  Thus, the judge may consult with a disinterested expert on the law, provided the judge gives notice to the parties of the expert consulted, provides a copy of such advice if the advice is given in writing or the substance of the advice if it is given orally, and affords the parties a reasonable opportunity to respond (see 22 NYCRR 100.3[B][6][b]).  The inquiring judge must exercise caution, however, to ensure that the judge does not delegate judicial decision-making to the expert (see e.g. Opinions 15-127; 14-137; 09-211), since the expert should be consulted only on the law and not on the outcome of the legal issue.