Opinion 90-170

December 11, 1990

Digest:         It is ethically permissible for one judge to contact another judge, ex parte, to request an adjournment of a case, where there is a conflict on their respective calendars, because the same attorney is scheduled in both parts at the same time.

Rules:          22 NYCRR 100.3 (a) (4;

                   22 NYCRR 125.1; Canon 3 of the

                   Code of Judicial Conduct.

Opinion:

         The inquiring judge is concerned with, and requests the Committee’s advice with respect to the possible ethical impropriety which arises when the judge is contacted, ex parte, by another judge to request an adjournment or otherwise to coordinate the two calendars, where an attorney has a conflict between cases on the calendars of these judges.

         We find no prohibition to such contact in the Canons or Rules of Judicial Conduct. It is inevitable that under the individual Assignment System scheduling problems will arise, where, for all practical purposes, each judge has the flexibility to determine his or her scheduling procedures and to fix trial dates. Without central coordination, two cases involving the same counsel could be scheduled for trial before two different judges at the same time, and the resolution of such conflict is best left to the judges involved, with deference to the Uniform Rules for the Engagement of Counsel. [22 NYCRR §125.1( c )]. Such rules provide, inter alia, “where an attorney has conflicting engagements in the same court or different courts, the affected courts shall determine in which matters adjournments shall be granted and in which matters the parties shall proceed”. (Emphasis added)

         The prohibition against judges initiating or considering ex parte communications concerning a pending matter is not directed at either calendar control or case management. (22 NYCRR 100.3 (a) (4); Canon 3 of the Code of Judicial Conduct). Indeed as the commentary to Canon 3 of the Code of Judicial Conduct points out, “It does not preclude a judge from consulting with other judges or with court personnel whose function is to aid the judge in carrying out his adjudicative responsibilities.”