July 14, 2017
This responds to your inquiry (17-101) asking whether it is ethically permissible for you to meet with attorneys who represent criminal defendants concerning a “defense perspective” on the court’s handling of “discovery, diversion and disposition of cases.” The organizer of the meeting indicates that the attorneys intend to speak about these issues “generally” and “do not seek to discuss individual cases.” In addition, the organizer asserts that they will not “engage in ex parte conversations” or “discuss DA policies.” However, they do not wish to have any prosecutors attend the meeting.
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]). We have advised that a judge’s participation in this type of exclusive, private meeting may well cast doubt upon a judge’s impartiality (see 22 NYCRR 100.4[A]), particularly where the attendees, who represent one set of interests before the judge, wish to discuss substantive and procedural legal issues in the other side’s absence. This is so even if the attendees do not plan to discuss specifically identifiable pending cases. Therefore, you should not participate in this meeting.
Enclosed, for your convenience, are Opinions 13-124/13-125/13-128/13-129; 07-188; and 06-154/06-167 which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Div., First Dep’t (Ret.)
Hon. Margaret T. Walsh
Family Court Judge
Acting Justice, Supreme Court