Opinion 11-33

March 9-10, 2011

Digest:         A judge may not disclose facts about a case pending before him/her to a legislator in the belief that the legislator would investigate possible wrong-doing by a child welfare agency but may discuss his/her concerns with his/her administrative judge.

Rules:          22 NYCRR 100.2(A); 100.3(B)(6); 100.3(B)(6)(c); 100.3(B)(6)(e); 100.3(B)(8); 100.3(E)(1); 100.5(A)(1); Opinions 03-110; 01-41.

Opinion:

         A Family Court Judge is presiding in a child neglect matter involving a child whose sibling died allegedly as the result of the parents’ neglect. While the surviving child is no longer residing with the parents, the judge has “grave concerns” about whether the responsible child welfare organization took timely and appropriate steps to protect the children, especially the deceased child. The judge asks whether he/she may inform a legislator who the judge believes would want to see the matter investigated.

         Pursuant to the Rules Governing Judicial Conduct, a judge must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). Therefore, a judge must not make any public comment about a pending or impending proceeding in any court within the United States or its territories (see 22 NYCRR 100.3[B][8]) and must refrain from inappropriate political activity (see 22 NYCRR 100.5[A][1]). Moreover, a judge must accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law (see 22 NYCRR 100.3[B][6]). Thus, a judge is prohibited from initiating, permitting, or considering ex parte communications or other communications made to the judge outside the presence of the parties or their lawyers concerning a pending proceeding (id.). Nevertheless, a judge may consult with other judges (see 22 NYCRR 100.3[B][6][c]) and may initiate or consider ex parte communications when authorized by law to do so (see 22 NYCRR 100.3[B][6][e]).

         In the Committee’s view, these rules preclude the inquiring judge from disclosing facts learned in the course of a pending proceeding to a legislator. To do so would virtually ensure that they will be made public (see 22 NYCRR 100.3[B][8]) and could create an appearance that the judge is indirectly engaging in prohibited political activity (see 22 NYCRR 100.5[A][1]). Also, were the judge to discuss the case with a legislator, the judge would be engaging in a prohibited ex parte communication concerning a matter pending before him/her (see generally 22 NYCRR 100.3[B][6]).

         However, this does not mean the inquiring judge has no avenue for expressing his/her concerns about the conduct of the responsible child welfare agency. Because a judge may discuss pending matters with other judges (see 22 NYCRR 100.3[B][6][c]; Opinion 01-41), the Committee suggests that the judge discuss his/her concerns with his/her Administrative Judge. Although the Administrative Judge also is precluded from publicly commenting about a pending or impending proceeding (see 22 NYCRR 100.3[B][8]), it is the Committee’s view that the Administrative Judge, unlike the presiding judge, may privately report pertinent facts concerning the local child welfare agency’s conduct with respect to the deceased child to an appropriate investigative body, without in any way compromising the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]; cf. Opinion 03-110 [a judge has discretion to determine whether to advise the appropriate authorities as to possible illegal activity]) or necessitating the presiding judge’s disqualification (see 22 NYCRR 100.3[E][1]).