April 18, 2002
NOTE: MODIFIED BY OPINION 04-88
Digest: Under the particular circumstances presented, a judge who presides over a drug treatment court may consider ex parte communications made at meetings of the drug court treatment team.
Rules: 22 NYCRR 100.3(B(6); 100.3(B)(6)(d), (e); AO/152/02 March 19, 2002.
The inquiring judge, who presides over felony criminal proceedings in a county which has initiated a drug court treatment program, expresses concern about the use by the court of ex parte communications which are likely to arise in the operation of the program as designed and as intended to be implemented.
As described by the judge, the program is a “pre-sentence program whereby a drug addicted defendant is placed on one year interim probation with drug court conditions.” In order to participate in the program, the defendant enters into an agreement with the court, which sets forth the terms and conditions that are to apply. Following the successful completion of interim probation the defendant is to receive a three year conditional discharge. The defendant is represented by either retained or assigned counsel.
During the interim probation period the court schedules bi-weekly court appearances with the defendant and the “drug court treatment team.” The team consists of the judge, prosecutor, probation director, treatment personnel, pre-trial release personnel, a coordinator, and the defendant’s attorney should he or she choose to attend. At the meetings, called “staffings,” substantive issues are discussed concerning the defendant’s progress or conduct including possible positive testing for drugs or non-compliance with outpatient treatment. It is at such staffings that the ex parte communications are likely to be made concerning such matters. (Failure to comply with the conditions of probation could result in the imposition of the maximum sentence allowed by law. Should a claim be made of such a violation the appearance of defense counsel is required prior to the imposition of any sanctions.)
In addition to the information about the operation of the program provided by the judge in the inquiry, we have been informed that there is now an administrative order issued by the Chief Administrative Judge (AO/152/02, March 19, 2002), which requires that the agreement with the defendant allowing him or her to participate in the drug treatment court program must incorporate language that provides as follows:
I understand that the staff of the drug court, which may include the judge presiding over my case, will be meeting at regularly scheduled staffings to discuss my ongoing progress and participation in the drug court program, and that such meetings may include my substance abuse treatment provider. I understand that my attorney is invited to these staffings and may or may not attend them in his or her discretion. I agree that any non-appearance by my attorney at a staffing shall be deemed a waiver of his or her participation for that particular staffing. I further understand and agree that communications during these staffings may take place in the absence of myself or my attorney and that the judge may consider such communications.
The Committee is of the opinion that, under all the circumstances presented, consideration by the judge of communications made at the meetings of the drug court treatment team is not unethical. Section 100.3(B)(6) of the Rules Governing Judicial Conduct provides that “[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,” unless one of the exceptions specified in subparagraphs (a) through (e) of section 100.3(B)(6) is applicable.
In that regard, subparagraph (d) of section 100.3(B)(6) states that “[a] judge, with the consent of the parties, may confer separately with the parties and their lawyers on agreed upon matters.” But, here, the judge is not necessarily conferring with the parties or their lawyers, and thus it is questionable whether that exception by its terms could be read to incorporate consideration of the communications made by others at the staffings of the drug court treatment team.
This does not inevitably mean that the provision for consent contained in subparagraph (d), which may not apply, necessarily precludes validation of a waiver given by the defendant under any other circumstances. Certainly, the concept of waiver - i.e., the knowing abandonment of a legal right - is hardly foreign to the criminal law. In considering whether that is possible in this instance, we are aided by the exception provided for in subparagraph (e) which states that “[a] judge may initiate or consider any ex parte communications when authorized by law to do so.” The order of the Chief Administrative Judge, set forth above, does, in our opinion, meet this criterion and thus allows the judge to consider such communications in light of the provision for waivers in the agreement executed by the defendant, who is represented by counsel.
In reaching our conclusion, attention is also given to the Preamble of the Rules Governing Judicial Conduct, which states, in part, that the “rules governing judicial conduct are rules of reason. They should be applied consistently with constitutional requirements, statutes, other court rules and decisional law and in the context of all relevant circumstances.” Applying such guidelines, we conclude that a consideration of communications made at the meetings of the drug court treatment team by the judge in accordance with the agreement of the defendant and as provided for under the order of the Chief Administrative Judge, would not violate any ethical precept.1
1Our opinion is limited to communications made at such meetings. It is not intended to validate consideration of communications made outside such meetings, and thus does not encompass the reference by the judge to “all ex parte communications,” regardless of when, where and by whom they are made.