June 27, 2001
Unless an exception set forth in section 100.3(B)(6) of the Rules Governing
Judicial Conduct applies, a judge may not participate in an ex parte conference
in a pending matter requested by a receiver for the purpose of discussing
the merits of an action.
CPLR 6401; 22 NYCRR 100.3(B)(6);
Opinion 95-29 (Vol. XIII).
In the course of an action in the judge's court, a receiver had been appointed pursuant to CPLR 6401. The judge asks whether it is ethically permissible to participate in an ex parte conference requested by the receiver in which it is intended that the merits of the action will be discussed.
This Committee has previously stated that a judge cannot discuss the merits of a child custody dispute with a law guardian appointed to represent the child, because such a discussion would constitute an impermissible ex parte communication in the absence of the consent of all parties. Opinion 95-29 (Vol. XIII). Section 100.3(B)(6) of the Rules Governing Judicial Conduct prohibits a judge from engaging in ex parte communications except under certain specific circumstances, none of which appear to be present. Accordingly, in the absence of an enumerated exception, the judge may not participate in an ex parte conference requested by the receiver to discuss the merits of the action.