December 8, 2016
Digest: A judge should not send a thank you note in response to a laudatory ex parte letter from an attorney who recently appeared before the judge.
Rules: 22 NYCRR 100.0(U)-(V); 100.2; 100.2(A)-(C); 100.3(B)(6); Opinions 16-155; 15-178; 15-106; 10-206; 09-11; 91-132.
After deciding a motion, a judge received a letter from one of the attorneys. The letter commends the judge for the decision, even though it “was not in favor of our [c]lient.” Opposing counsel was not copied on the letter. The judge asks whether he/she may respond to the attorney with a thank you note.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). In general, subject to exceptions not relevant here, 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 (see 22 NYCRR 100.3[B]). A judge also must not “allow family, social, political or other relationships to influence the judge's judicial conduct or judgment” (22 NYCRR 100.2[B]) and must not “convey or permit others to convey the impression that they are in a special position to influence the judge” (22 NYCRR 100.2[C]).
Although the Committee has not addressed this precise issue before,1 the Committee has advised that a judge should not meet with a victim who wished to thank the judge for considering the victim’s views at the time of sentencing (see Opinion 09-11) or attend an appreciation luncheon held by a relative of murder victims to thank invited guests for “your love and support” more than one year after the judge presided over the trial (Opinion 91-132). In Opinion 09-11, the Committee observed that, although the matter was no longer pending before the judge, it was nonetheless “reasonably foreseeable that a collateral or post-judgment application, an appeal ... or other proceeding may be filed either in the inquiring judge’s court or in another court or tribunal of competent jurisdiction involving” the victim and/or the defendant. Further, the Committee concluded that the proposed ex parte meeting with the victim of the proceeding “could at the very least create an appearance of impropriety” (id.; see also 22 NYCRR 100.2; Opinion 91-132).
Here, the judge received a laudatory letter ex parte from an attorney while the case was apparently still pending or impending (see generally 22 NYCRR 100.0[U]-[V]; Opinion 10-206 [“A matter is ‘pending or impending,’ even after the original trial is complete as long as any appeal or collateral proceeding in the case is pending or likely”]). The judge is certainly not responsible for the attorney’s conduct, as there is no indication he/she in any way solicited or invited the letter. Nonetheless, a judge should discourage impermissible ex parte communications concerning cases before the judge, even where, as here, such communications appear to be non-substantive (see e.g. Opinions 16-155 [“a judge’s obligation is generally to ‘discourage any discussion of a case that is currently pending before the judge’”]; 15-106 [judge need not disclose “brief and non-substantive conversation” in which an attorney “prais[ed] the judge’s handling of bench conferences” in an ongoing matter]).
A thank you note here could easily be misconstrued by the public, and by the attorney, as encouraging ex parte communications, thus creating an appearance of impropriety (see 22 NYCRR 100.2[A]; 100.3[B]). Indeed, if the judge were to acknowledge this particular communication with a thank you note, the attorney could potentially receive the false impression that he/she is in a special position to influence the judge and/or that the judge might allow the attorney’s unsolicited, laudatory letter to influence his/her judicial conduct or judgment in the future (see 22 NYCRR 100.2[B]-[C]).
Therefore, the judge may not respond with a note thanking the attorney. Under the circumstances, the judge need not take any further action with respect to this non-substantive ex parte communication.
Additionally, if the judge has not already done so, the judge should set up a screening procedure if possible, so that staff members can return impermissible ex parte communications to the sender without exposing the judge to the substance of such communications (see Opinion 15-178).
1 Opinion 15-106 similarly involves an attorney’s unsolicited praise of a judge, but it focuses on disclosure and disqualification issues. There, an attorney, despite the judge’s efforts to dissuade him/her, “mention[ed] his/her recent appearance before the inquiring judge and prais[ed] the judge’s handling of bench conferences.” The Committee concluded the judge need not disclose this “brief and non-substantive conversation with counsel at a bar association function” and may continue to preside in the case (id.).