March 10, 2005
Digest: A judge presiding over a drug court (1) may engage in ex parte communications with court personnel pursuant to 22 NYCRR 100.3(B)(6)(c) concerning information obtained by such personnel, whether outside of or at drug court staffings or court appearances, but should give notice to and inform the defendant’s attorney of the content and nature of those communications; (2) is authorized under 22 NYCRR 100.3(B)(6)(e) to consider ex parte communications at staffings and court appearances from drug court team members provided there has been consent as required under Administrative Order 142/03; (3) should consult with his/her administrative authority for the purpose of revising the current drug court participation agreement used in the judge’s court so that it is in conformity with Administrative Order 142/03.
Rule: 22 NYCRR 100.3(B)(6)(c), (e); A/O 142/03; 152/02 (rescinded). Opinion 01-52.
In Opinion 01-52 the Committee addressed the question of whether a judge presiding over a drug court treatment program may consider “ex parte communications which are likely to arise in the operation of the program as designed and intended to be implemented.” Opinion 01-52. In concluding that under the circumstances a judge who presides over a drug treatment court may consider ex parte communications occurring at meetings of the drug court treatment team (referred to as “staffings”), we relied on the Chief Administrative Judge’s Administrative Order 152/02 of March 19, 2002. That order directed that the participation agreement between a defendant and the court include a provision whereby the defendant agreed “that communications during these staffings may take place in the absence of myself or my attorney and that the judge may consider such communications,” and further provided for a waiver of his or her attorney’s participation at such meetings. In our view, the issuance of that order met the exception stated in section 100.3(B)(6)(e) of the Rules Governing Judicial Conduct which provides that “A judge may initiate or consider any ex parte communications when authorized by law to do so.” 22 NYCRR 100.3(B)(6)(e).
Thereafter, concerns were expressed that the mandated provision was unduly burdensome in that it appeared to require defendants to waive their right to counsel at staffings as a prerequisite to participation in the program and, further, failed to mention ex parte communications that may occur in open court immediately following the staffings. As a consequence, Administrative Order 152/02 was rescinded on April 8, 2003, and a new Administrative Order (A/O 142/03) was issued on that date. It reads as follows:
Pursuant to the authority vested in me, I hereby
direct that a Judge presiding over a drug treatment
court may at a drug court appearance or staffing
session, initiate, permit or consider ex parte
communications with treatment providers, probation
officers, law enforcement officials and other
members of the drug court team who are not
court personnel, provided the absent party and
his or her attorney have consented thereto.
Accompanying the issuance of the new directive was a detailed set of Guidelines intended to be applied at drug court staffings and court appearances concerning the handling of ex parte material. It is in light of these Guidelines, the new Administrative Order and sections 100.3(B)(6)(c) and (e) of the Rules Governing Judicial Conduct, which deal with ex parte communications, that the inquiring County Court judge who presides over a drug treatment court poses certain issues for consideration by the Committee.
In responding to those inquiries, we must first point out the special circumstances inherent in a drug court setting which are not necessarily present in an ordinary criminal proceeding in the context of a discussion about ex parte communications. A drug court proceeding is predicated upon an ongoing, interactive relationship between defendant, the drug court team and the court. That fact alone distinguishes it from the usual criminal proceeding structure of plea, trial, and sentence which often does not involve evaluation and consideration of a defendant’s present activity between the proceedings’ beginning and end. However, inherent in drug court relationship is the continuing exchange of information among the various participants virtually always including court personnel who are not drug court team members. It is only through such interchange that the salutary purposes of the program can be achieved. At the same time, achieving those goals can not be accomplished at the expense of the defendant’s legal rights, which include the protections afforded vis a vis ex parte communications. As stated in the first sentence of section 100.3(B)(6) of the Rules Governing Judicial Conduct, “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.” 22 NYCRR 100.3(B)(6). It is against this background, which includes the Rules Governing Judicial Conduct, the Administrative Orders referred to herein, and the Guidelines that we consider the questions posed by the inquirer.
Essentially, the questions raised by the judge assume various scenarios where information has been conveyed to members of the judge’s staff (i.e. “court personnel”) who are not members of the drug court team, and who then convey that information to the judge. The judge asks, for example, whether ex parte communications engaged in by the judge’s staff who are employees of the court, outside of the drug court staffing may be reported to the judge “ex parte, in drug court staffing sessions and court appearances without consent of the absent party.” Reference is made to section 100.3(B)(6)(c) of the Rules which provides that as an exception to the prohibition on judicial consideration of ex parte communications, “A judge may consult with court personnel whose function is to aid the judge in carrying out the judge’s adjudicative responsibilities or with other judges.” 22 NYCRR 100.3(B)(6)(c). That section appears to permit a judge to consider the
communications referred to by the inquirer since they could be deemed to constitute a “consultation” with court personnel and therefore authorized under the Rules without first obtaining the consent of a party. That is, the fact that the information was obtained by the employees outside of a staffing session or court appearance does not mean that it cannot be communicated at such sessions or appearances to the judge, without the defendant’s consent.
But, that still leaves open the question of whether the defendant is entitled to know about such communications. For, the fact that a judge may be authorized to engage in ex parte communications does not mean that such communications should be kept from the parties. Indeed, given the potential significance of such material dealing with conduct of the defendant during the pendency of the actions, and its possible consequences to the defendant’s liberty, we are of the opinion that in this particular situation it is important that the defendant’s attorney be given notice of and informed of the content and nature of the communications.
The judge also asks whether the judge’s staff who are court employees may engage in ex parte communications in staffings or court appearances with drug court team members who are not court employees and then report the communications back to the judge ex parte, in the same drug court staffing session and/or court appearances if the party did not consent to ex parte communications. Here, it appears that the judge is asking about a possible scenario where the “court personnel” exception under the section 100.3(B)(6)(c) might come into play at the staffing or appearance itself thus obviating the need for obtaining consent in order for the judge to consider the ex parte information. Yet, since Administrative Order 142/03 is intended to cover communications from drug court team members at the staffings or appearances, we do not believe that the court personnel exception should be interpreted to avoid what is required under that order at such staffings or appearances, i.e., consent of the defendant. And, yet, the court personnel exception is provided for under the Rules. Under that set of circumstances, it again seems advisable that should court personnel be the conveyors to the judge of the communications from drug court team members, the judge should provide notice to and inform the defendant’s attorney of the content and nature of the communications where consent has not been given.
In short, the court personnel exception does permit the judge to be the recipient of the communications in the situations outlined above. But, the due process rights of the defendant can best be preserved by instituting practices and procedures which assure the defendant and his or her attorney prompt and meaningful access to that information which comes to the judge from court personnel who are not part of the drug court team. Having access to that information would thus enable the defendant to properly invoke his/her right to be heard as provided by 22 NYCRR 100.3(B)(6). How that can best be accomplished is, of course, the province of the appropriate administrative authorities.
In addition, what should not be ignored, given the special nature and purposes served by the drug court is the desirability of effectuating Administrative Order 142/03. It is that provision which permits a judge to be engaged in ex parte communications “at a drug court appearance or staffing session,” with members of the drug court team who are not court personnel “provided the absent party and his or her attorney have consented thereto.” A/O 142/03 (emphasis added). That is the order which furnishes the authority for the judge to be engaged in the ex parte communications with certain non-court personnel, in that its promulgation constitutes authorization by law to initiate or consider such communications, and is thus an exception to what would otherwise be prohibited. 22 NYCRR 100.3(B) (6)(e).
Such consent presumably will be forthcoming in the agreement between the defendant and the court, and should be implemented in accordance with the detailed provisions of the Guidelines. This, however, does not mean that the wording of certain paragraphs of the agreement currently used in the judge’s court should continue to be used. The paragraphs quoted by the judge and about which he/she inquires are virtually identical to what was required under Administrative Order 152/02. But, as noted, that directive was rescinded on April 8, 2003 and replaced by Administrative Order 142/03, which although it does not specify the language pertaining to ex parte communications to be used in a participation agreement, must be read as providing the basis for such provisions in the agreement. Retaining the present language in view of the rescission is not tenable. Accordingly, we recommend that the inquiring judge consult with his or her administrative authority for the purpose of revising the current agreement so as to reflect what is provided for in Administrative Order 142/03, and not Administrative Order 152/02.
In sum, information obtained by court personnel whether outside of or in staffings or court appearances may be communicated to the judge ex parte at staffings or court appearances under section 100.3(B)(6)(c) of the Rules Governing Judicial Conduct regardless of whether the defendant consented, but the defendant’s attorney must be informed of the nature and content of such communications. Moreover, the judge’s consideration of ex parte information conveyed at staffings or court appearances which was obtained at such staffings or appearances from court drug team members is permissible under section 100.3(B)(6)(e) of the Rules in view of the issuance of Administrative Order 142/03, which order requires the consent of “the absent party and his or her attorney. . . “ A/O 142/03. Any agreement between the defendant and the court concerning what occurs at staffings or court appearances should reflect and not exceed what is permissible under that directive with respect to ex parte communications.
Further, and contrary to the judge’s interpretation of Opinion 01-52, that opinion does not state that a waiver by a defendant in a drug court participation agreement may by itself enable a judge to engage in ex parte communications whether in or out of drug court staffings or court appearances. The Committee made clear that the validity of a waiver was dependent upon the exception provided for in subparagraph (e) of section 100.3(B)(6) which permits a judge to initiate or consider ex parte communication “when authorized by law to do so.” 22 NYCRR 100.3(B)(6)(e). That is precisely what is accomplished, in our opinion, by Administrative Order 142/03 with respect to communications from drug court team members at staffings and court appearances where the defendant is absent.
Finally, in view of the fact that Opinion 01-52 was predicated in large measure on the issuance of Administrative Order 152/02 and that directive has been rescinded, that opinion should be deemed modified to reflect the particulars dealt with herein. We note, however, that its basic premise, that in the drug court situations an administrative order of the Chief Administrative Judge may constitute a sufficient basis for concluding that consideration of certain ex parte communications have been “authorized by law,” and therefore are permitted under 22 NYCRR 100.3(B) (6)(e), remains in effect. This opinion adds the proviso that where court personnel who are not members of the drug court team, are the providers of information to the judge, notice should be given to the defendant’s attorney of the nature and content of the communications.