Opinion 96-95

September 5, 1996

Digest:         A letter written to a judge by a bar association concerning a pending proceeding should not be considered by the judge and, under the circumstances presented, should be sent to defendant’s lawyer, the District Attorney and the Presiding Justice of the Appellate Division.

Rules:          22 NYCRR 100.3 (B)(6)

Opinion:

         A defendant had been convicted before the inquiring judge and his conviction was unanimously affirmed by the Appellate Division. Thereafter, the defendant moved to vacate the conviction, pursuant to Crim. Proc. Law § 440. During the pendency of the motion, the judge received a letter from a bar association, signed by its president, stating that it is being written at the request of the board of directors. The letter expresses concern that “a miscarriage of justice may well have occurred and may still be occurring.” The letter goes on to discuss the existence of purported inconsistent statements having been made by the complainant in the case, which “were not presented to the jury,” and raises as an issue the question of whether the complainant “should now face charges of perjury for testifying with a reckless disregard for the truth. “It asks the inquiring judge to see that justice is done”and states that “no American should serve time for a crime he did not commit.”

         The inquirer notes that three of the bar association’s directors are judges, including an Appellate Division justice who had granted a stay pending sentence in the matter and who was on the Appellate Division panel that unanimously affirmed the conviction.

         The Committee is of the view that the letter falls within the scope of section 100.3 (B)(6) of the Rules Governing Judicial Conduct, which states:

(6) 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. A judge shall 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.

         Clearly, the letter is a communication “made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding.” Thus, the judge may not consider it. Beyond that, it would be advisable for the judge to furnish a copy of it to defendant’s lawyer, the District Attorney and the Presiding Justice of the Appellate Division.