December 3, 2015
Digest: A part-time judge may consult ex parte with court personnel who staff the City, Town and Village Courts Resource Center, and such communications need not be disclosed.
Rules: 22 NYCRR 100.3(B): 100.3(B)(6)(b), (c); Opinion 12-01.
A part-time judge asks whether communications between part-time judges and the court personnel who staff the Unified Court System’s City, Town and Village Courts Resource Center “regarding matters pending in their courts” are ethically permissible. If so, the judge asks whether there must be notice and/or disclosure to the parties in the case. The judge states that the Resource Center’s staff are Unified Court System employees who are, among other duties, specifically assigned to provide legal advice and guidance concerning matters pending in part-time judges’ courts. Some Resource Center staff members are also themselves part-time judges.
A judge must 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, unless an exception applies (see 22 NYCRR 100.3[B]). Significantly, 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][c]). A judge who consults with court personnel whose function is to aid the judge in carrying out the judge’s adjudicative responsibilities, unlike a judge who seeks the advice of a disinterested expert on the law applicable to a proceeding before the judge, has no obligation to provide notice or an opportunity to respond (compare 22 NYCRR 100.3[B][b] with 100.3[B][c]).
The Office of Court Administration established the Resource Center in 1991 “recognizing that few, if any, localities can afford to employ court attorneys” in their town and village courts (Action Plan for the Justice Courts: Two Year Update, at 5 [Sept. 2008]). In order to fill this need, Resource Center attorneys:
Provide confidential legal advice to local Justices on all aspects of criminal and civil law, both procedural and substantive. The attorneys are available 365 days a year, during the day as well as at night, when most Justice Courts convene, and can be reached by fax, toll-free telephone or email (id.).
The Resource Center staff also includes non-attorneys “who have significant experience as Town and Village Court Clerks” (id.) These non-attorney staff members similarly provide advice to local judges and clerks on “operational and administrative issues, including the numerous recordkeeping obligations imposed on Justice Courts, the proper handling of funds collected, public access to court records, and day-to-day issues that often arise between the local courts and other branches and levels of government” (id.).
For purposes of the ex parte communications rule, Resource Center staff are clearly court personnel whose “function is to aid [judges of the city, town and village courts] in carrying out [their] adjudicative responsibilities” (22 NYCRR 100.3[B][c]). Accordingly, communications between part-time judges and Resource Center staff are permissible ex parte communications which need not be disclosed to the parties (see 22 NYCRR 100.3[B][c]; Opinion 12-01).