Opinion 90-125

September 18, 1990

Digest:         A part-time judge may communicate directly with a defendant who is represented by counsel, to advise the defendant of a court date, so long as the judge also communicates simultaneously with the defendant’s lawyer and the adversary, but may not communicate concerning the amount of the fine.

Rules:          22 NYCRR §100.3(a)(4)

Opinion:

         A part-time judge asks if it is permissible to communicate directly with a defendant who is represented by an attorney, stating the scheduled date of appearance and the amount of the fine.

         The judge wants to write to the defendant that, “You are scheduled to appear on: ______ . Bring your lawyer.” “Or: Your fine is to be $ ____.00. Submit to court on or before _________ 19 ____.”

         We find no ethical bar which prohibits a town justice from delivering to or sending a proper notice to a defendant advising of a scheduled court date and informing that individual that he or she should appear accompanied by counsel.

         However that portion of the proposed notice which states: “Or: Your fine is to be $_____.00. Submit to court on or before _________ 19 ____” is ethically impermissible and should not be included.

         Section 100.3(a)(4) of the Rules of the Chief Administrator of the Courts provide that:

A judge shall accord to every person who is legally interested in a matter, or his or her lawyer, full right to be heard according to law, and, except as authorized by law, neither indicate nor consider ex parte or other communications concerning a pending or impending matter. ...

         A judge may send a notice to a defendant, who has an attorney, advising the defendant of a scheduled court date and informing that individual that he or she should appear accompanied by counsel, as long as the judge simultaneously sends a copy of the letter to the defendant’s attorney and to the adversary as well.

         The portion of the notice that the Committee finds objectionable violates the above-captioned rule in failing to accord a defendant or counsel the “... full right to be heard according to law, ...” before imposing judgment.

         Initially, the objectionable portion presupposes a determination of guilt, either by plea, decision or verdict, on the merits of the offense charged. Such pre-supposition can easily be viewed a s a prejudgment by the court.

         Additionally, by stating the penalty to be imposed the court bypasses the rights and procedures set forth in Article 380 of the Criminal Procedure Law (see, Sections 380.30[3]; 380.40[1] and [2] ; 380.50) . In citing these provisions of Article 380, the Committee is aware that other procedures may apply to sentencing of non-criminal offenses (see Section 380.10[2]). However, the present inquiry is not limited to such cases.

         Finally, we point out that the Commission on Judicial Conduct has disciplined judges for having deprived defendants and litigants of certain fundamental rights. They have identified “violation of rights” as a problem area and advised the judiciary in that regard so that potential misconduct may be avoided (N.Y. State Comm. on Judicial Conduct Annual Report 1990, p.38).