September 16, 2010
Digest: A town justice may furnish advance copies of the court’s criminal calendar to both the District Attorney and the assigned Public Defender on a monthly basis if he/she also complies with reasonable requests by other attorneys, defendants and members of the public for copies of the calendar.
Rules: 22 NYCRR 100.1; 100.2; 100.2(A); 100.2C; 100.3(B)(7); 100.3(C)(1); Opinions 09-94; 09-38; 07-115; 00-65 (Vol. XIX); Joint Opinion 07-185/08-68/08-77.
A town justice asks whether it is ethically permissible to furnish advance copies of the court’s criminal calendar to both the District Attorney and the assigned Public Defender on a monthly basis, without also sending copies to private attorneys who represent criminal defendants in the town court. According to information the judge provided, a local attorney objects to the court’s practice because it“ gives [the prosecution] an unfair advantage” over privately retained defense counsel. The attorney asks that “[a]ll attorneys within the county ... be given the same courtesies.”
A judge must uphold the integrity and independence of the judiciary (see 22 NYCRR 100.1), avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2), and always act in a manner that promotes public confidence in the judiciary’s integrity and independence (see 22 NYCRR 100.2[A]). Therefore, a judge must not convey that others are in a special position to influence the judge or allow others to convey that they are in such a position(see 22 NYCRR 100.2[C]). Also, a judge must dispose of all judicial matters promptly, efficiently and fairly (see 22 NYCRR 100.3[B]) and must diligently discharge his/her administrative duties without bias or prejudice (see 22 NYCRR 100.3[C]).
The Committee previously advised that a court may provide copies of a posted calendar of scheduled cases and posted or otherwise publicly make available documents noting case dispositions (subject to all applicable statutory provisions concerning confidential information or sealed records) at the request of the District Attorney, the Public Defender, other attorneys, the media, other interested persons, and to members of the public (see Joint Opinion 07-185/08-68/08-77). In the Committee’s view, doing so “is wholly consistent with the statutory provisions requiring court records and dockets to be open to reasonable public inspection” and, although not ethically mandated, may in some circumstances be “the best use of the limited resources available to justice courts” (id.). However, such calendars and other documents should not include personal data about parties such as their addresses and dates of birth (see id.).
The Committee also has advised that it is impermissible for the court to assist only one party in a case (see Opinions 09-94 [Village Justice should not, at District Attorney’s request periodically review lists of cases compiled by District Attorney’s office and indicate whether a case has been concluded]; 07-115 [judge should not create, maintain and/or produce information about court cases specifically and exclusively for benefit of District Attorney’s Office]). In addition, the Committee has advised that a judge may not provide only a district attorney with a copy of the court calendar in advance of court night with notations summarizing the driving record for each scheduled defendant(see Opinion 09-38). In each situation, the Committee decided that sharing the data in a way that benefitted only one side could compromise the independence of the judiciary (see 22 NYCRR 100.1), impair the public’s confidence in the judiciary’s integrity and impartiality(see 22 NYCRR 100.2[A]) and create an appearance of impropriety (see 22 NYCRR 100.2).
In the present inquiry, the judge provides the court calendar to the District Attorney and the Public Defender. There is no indication the calendar is annotated or tailored to the specific needs of either the District Attorney or Public Defender (see Opinion 07-115). Therefore, the judge may continue to give the calendar to them if he/she also complies with reasonable requests by other attorneys, defendants and members for copies of the calendar.
The inquiring judge may notify others that the court calendar is available in a number of ways, such as on the court’s or municipality’s website, on public bulletin boards throughout the municipality (for example, in the courthouse, at the town hall, at the public library or at the police department), in municipal or bar association publications or in any other media that is likely to reach the general public and attorneys.
Similarly, the judge should make reasonable efforts to make the court’s calendar widely available. For example, the judge may post the calendar in the courthouse or other public location, send it by e-mail or, ideally, publish the calendar on-line on the municipality’s and/or the court’s website, or on bar association websites. Again, the information included in any publicly posted calendar is subject to all applicable statutory provisions concerning confidential information, sealed records, and redaction of protected information such as defendants’ addresses and dates of birth (see Joint Opinion 07-185/08-68/08-77).
Nothing in this opinion is intended to require any court to distribute court calendars, particularly where judicial resources are limited, as court records must by law be open to reasonable public inspection (see Joint Opinion 07-185/08-68/08-77). Moreover, when possible, it is best for non-judicial personnel, rather than a judge, to produce and/or provide copies of documents the court maintains in accordance with governing statutes and rules (see id.; Opinion 00-65 [Vol. XIX]).