Opinion 25-17

February 6, 2025

Digest:   A judge need not disclose the contents of an ex parte communication from a litigant unless it contains substantive information related to the underlying dispute.

Rules:    22 NYCRR 100.0(U)-(V); 100.2; 100.2(A); 100.3(B)(6); Opinions 20-195; 18-43; 17-109; 16-156; 14-39; 08-62; 08-54; 08-23; 07-192; 07-82; 98-144; 96-95.

Opinion:

          The inquiring judge has received multiple ex parte letters from a criminal defendant, both while the defendant was unrepresented and after the defendant secured representation, notwithstanding the judge’s efforts to dissuade the defendant from communicating directly with the court.  Some of these letters are addressed to the judge, while others are seemingly addressed to attorneys and non-parties.  The judge recently recused from the underlying proceeding.  With respect to certain ex parte communications that have not yet been disclosed to all counsel, the judge asks if it is necessary to disclose them.

          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 its final disposition” (22 NYCRR 100.0[U]), and “[a]n ‘impending proceeding’ is one that is reasonably foreseeable but has not yet been commenced (22 NYCRR 100.0[V]).

          We have advised that “[a] judge’s obligation to disclose a particular ex parte communication depends on the communication’s content, context and circumstances” (Opinion 20-195 [internal quotation omitted]; see generally Opinions 18-43; 17-109; 14-39;  08-23; 98-144).  If the ex parte communication includes information about disputed evidentiary facts or other information addressing the merits of a case, the judge must disclose the substance of the communication to all parties (see Opinions 07-82; 96-95; cf Opinion 98-144).  Conversely, a judge need not necessarily disclose a non-substantive ex parte communication, especially when the judge concludes he/she can decide the case without considering it (see Opinions 16-156 [discussing ex parte letter commending judge for prior decision on case]; 98-144 [advising no obligation to disclose ex parte communication alleging no relevant facts but expressing non-party’s viewpoint on how matter should be decided]).  For example, where a litigant sent a judge an ex parte letter enclosing a copy of the litigant’s disciplinary complaint against the judge, but “all disputed information on the merits [was] on the record and known to counsel and parties,” we concluded “the judge need not disclose the ex parte letter if he/she is confident he/she can decide the case impartially without considering it” (Opinion 18-43).  We have also said disclosure is not required where the inquiring judge in a contentious lawsuit received, but did not open or review, an evidently 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.).  Of course, in other instances, there may be legal or other factors for a judge to consider in determining what aspects of an ex parte communication to disclose.  Thus, we have advised that a judge “should not disclose the substance of an ex parte communication that is deemed privileged under CPLR §4503, but should disclose the substance of an ex parte communication about disputed evidentiary facts, or other information which addresses the merits of a pending case” (Opinion 07-192).

          Here, notwithstanding the judge’s recent recusal from the case, we conclude this judge must disclose impermissible ex parte communications he/she has received concerning the case, to the extent the judge determines the information is substantive.  We note that this determination is confined to the judge’s sole discretion as a matter of judicial ethics, especially where the judge may need to assess “larger legal issues” such as attorney-client privilege in the process (Opinion 08-62).