Opinion 08-23


April 24, 2008

 

Digest:         If there is reason to believe that disclosure to the defendant of an ex parte communication made to the judge may result in dangerous consequences to another innocent individual and the judge also determines, in good conscience, that he/she can decide the pending issues without considering the communication, then the judge need not disclose the ex parte communication to the parties or counsel.

 

Rules:          22 NYCRR 100.3(B)(6); 100.3(E); 101.1; Opinions 07-102; 07-82; 03-126; 99-50 (Vol. XVII); 98-144 (Vol XVII).


Opinion:


         A judge, who must re-sentence a defendant for violating his/her probation, received a letter from the defendant’s relative describing a series of incidents that, in the judge’s view “would definitely pertain to the merits of whether or not [the defendant’s] probation should be revoked.” Citing “obvious reasons,” the relative asked the judge not to share the letter with anyone who would tell the defendant that the relative wrote to the judge. The letter writer indicated that he/she also provided the same information to the probation department. In light of this Committee’s Opinion 07-82, the judge asks whether he/she must disclose the letter to the prosecution and the defense.


         Pursuant to the Rules Governing Judicial Conduct, a judge must 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 (see 22 NYCRR 100.3[B][6]). Further, a judge is prohibited from initiating, permitting, or considering ex parte communications or other communications made to the judge outside the presence of parties or their lawyers concerning a pending proceeding (id.).


         In Opinion 07-82, this Committee advised a judge who occasionally receives letters from indigent parties and minors complaining about their assigned counsel that he/she must disclose such a letter to all parties to the proceeding, after redacting privileged information, if the letter includes information about disputed evidentiary facts or other information addressing the merits of the pending case (see also Opinion 99-50 [Vol. XVII] [letters received by judge from friends and relatives of defendant or victim concerning a pending sentence that are being considered by judge should be made available for inspection by the parties and their attorneys]). The letter that is the subject of the present inquiry does include information addressing the merits of the pending case and, therefore, is similar to the letters at issue in Opinion 99-50 (Vol. XVII).


         Nevertheless, in Opinion 98-144 (Vol. XVII), this Committee concluded that, while disclosure of ex parte communications inadvertently received may generally be advisable, it is not an absolute requirement without regard to the content, context and circumstances of a particular communication. In this Opinion (98-144), the Committee concluded that the extraordinary circumstances presented permitted the judge to refrain from disclosing a communication from a non-party expressing his/her view as to how a special proceeding (an application for a pistol permit) should be decided. The circumstances in the present inquiry may warrant a similar result.


         In Opinion 98-144 (Vol. XVII), because the ex parte communication contained no factual allegations, the judge had no need to and, therefore, did not consider it. Further, the independent evidence introduced in the proceeding included a documented history of the pistol permit applicant’s history of domestic violence, drug and alcohol abuse, and criminal convictions that was sufficient for the judge to determine the application without reference to the ex parte communication.


         In the present inquiry, the ex parte communication contains substantial factual allegations relevant to the defendant’s re-sentencing proceeding. At this point, however, it is not known whether the judge will even need to consider those allegations as the letter writer indicated that the defendant’s probation officer and the probation officer’s supervisor also are aware of the same information. If the factual allegations contained in the ex parte communication are offered by the probation department personnel, the inquiring judge will have no need to consider the ex parte communication (id.).


         The Committee noted in Opinion 98-144 (Vol. XVII) that “the inquiring judge has determined that there is reason to believe that disclosure of the attempted ex parte communication might well result in further domestic discord and subject the individual who proffered the communication to potential serious, perhaps even life-threatening physical violence.” That may also be the case in the present inquiry, based on the facts the letter writer alleges and coupled with his/her request that the judge refrain from disclosing the letter to anyone who would in turn inform the defendant that it exists.

      

         It is the Committee’s view, therefore, that the judge in the present inquiry has the following options:

 

         (1)     If the judge has reason to believe that dangerous consequences to an innocent individual may result if he/she discloses the letter, and the judge also determines, in good conscience, that he/she can decide the pending issues without considering the ex parte information in the letter, then the judge need not disclose it to the parties or their counsel.

 

         (2)     If the judge concludes that disclosing the letter does not pose a risk of dangerous consequences to an innocent individual, he/she should disclose the letter.

 

         (3)     If the judge has reason to believe that dangerous consequences to an innocent individual may result if he/she discloses the letter and the judge cannot disregard the letter when re-sentencing the defendant, then in lieu of disclosure, the judge should exercise recusal without disclosing his/her reason for doing so (see 22 NYCRR 100.3[E]; Opinion 07-102).


         Should the judge decide to withhold the letter, he/she may consider making it a sealed record, subject to disclosure upon judicial order. Such a step, “appears ... to be a feasible, though not mandatory way of proceeding” (see Opinion 98-144 [Vol. XVII]).


         The Committee declines to consider whether the judge may disclose the letter to the prosecutor and defense counsel with instructions not to reveal it to the defendant, as that is a legal question which this Committee may not address (see 22 NYCRR 101.1; Opinion 03-126).


         Because the Committee believes that judges often are inadvertently exposed to ex parte communications in circumstances not unlike those in the present inquiry, the Committee recommends that judges implement a procedure to avoid such an occurrence in the future. Namely, a judge should have his/her law clerk, court attorney, court clerk or other appropriate member of his/her staff review all correspondence addressed to the judge before the judge sees it to screen for any ex parte communication. In this way, any ex parte communication can be dealt with appropriately, without necessitating either disclosure of sensitive information or the judge’s disqualification. For example, the judge’s staff member can return an ex parte communication to the sender, advising him/her that the judge cannot consider the information conveyed without notice to all the parties to the proceeding and suggesting that any relevant and necessary information be introduced in the proceeding according to the applicable laws of evidence and procedure.