April 24, 2008
Digest: A judge may return unsolicited correspondence to a litigant, which is virtually certain to be an impermissible ex parte communication, without disclosing to counsel or other parties either the return address on the envelope or that he/she received it.
Rules: 22 NYCRR 100.1; 100.2(A); 100.3(B)(4); 100.3(B)(6); Opinions 07-192; 07-82; 98-144 (Vol. XVII).
The inquiring judge is presiding over a contentious lawsuit that was commenced several years ago. The plaintiff moved for a default judgment, but has been unable to serve the defendant with the necessary papers because he/she has not been able to ascertain the defendant’s current address. Recently, the inquiring judge received correspondence from the defendant. The judge did not open the correspondence because it is virtually certain that, under the circumstances, the contents would constitute an impermissible ex parte communication. The judge advises that it is his/her usual practice to return attempted ex parte communications directly to the sender without reading them. The judge asks whether he/she must disclose the return address on the correspondence to the plaintiff.
Pursuant to the Rules Governing Judicial Conduct, 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 (see 22 NYCRR 100.3[B]). Disclosing ex parte communications to other parties and counsel is generally advisable. For example, in Opinions 07-192 and 07-82, the Committee advised that a judge must disclose the substance of an ex parte communication to all parties to the proceeding if it includes information about disputed evidentiary facts or other information addressing the merits of the pending case. However, disclosure is not an absolute requirement. The court may exercise its discretion in not disclosing an ex parte communication only after considering the “content, context and [surrounding] circumstances” of the particular communication (Opinion 98-144 [Vol. XVII]).
Here, the inquiring judge has not even reviewed the contents of the correspondence. Accordingly, the judge has no ethical obligation to disclose to other parties or counsel either that he/she received the correspondence or the return address on the correspondence. Indeed, if the judge would not ordinarily notify parties or counsel that he/she had received and returned an attempted ex parte communication, it could create an appearance of impropriety were the judge to decide instead to deviate from this practice for a particular plaintiff’s benefit (cf. 22 NYCRR 100.1; 100.2[A]; 100.3[B]).