September 6, 2007
Digest: A judge who receives a letter from a party complaining about his/her assigned counsel (1) need not disclose the letter to all parties if it addresses only the lawyer’s conduct and/or relationship with the client; (2) should exercise his/her discretion concerning whether to disclose the letter to the assigned counsel; (3) must disclose the letter to all parties, after redacting privileged information, if it includes information about disputed evidentiary facts or other information addressing the merits of the pending case; and (4) need not investigate the complaint, but must take appropriate action if the judge concludes that there is a substantial likelihood that the lawyer has committed a substantial violation of the Code of Professional Responsibility.
Rules: 22 NYCRR 100.3(B)(6); 100.3(D)(2); Opinions 04-116; 98-144 (Vol. XVII); 96-95 (Vol. XIV).
A judge who occasionally receives letters from indigent parties and minors complaining about their assigned counsel and asking the judge to assign new counsel asks if he/she may review such letters without disclosing their contents to all parties to the proceeding. The judge also asks whether he/she has any duty to investigate the letters’ allegations, and, if so, how to do so without communicating ex parte.
Pursuant to Section 100.3(B)(6) of the Rules Governing Judicial Conduct, a judge “shall 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.” 22 NYCRR 100.3(B)(6). To that end, therefore, a judge generally may not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of parties or their lawyers concerning a pending or impending proceeding. Id.
While the letters described by the judge are ex parte communications, whether he/she must disclose a particular letter depends on its contents. Opinion 98-144 (Vol. XVII). A letter addressing only a lawyer’s conduct and/or a lawyer’s relationship to the client does not compromise the opposing party’s right to be heard. 22 NYCRR 100.3(B)(6). In that circumstance, therefore, the judge need not disclose the letter to all parties to the proceeding. Rather, the judge should exercise his/her discretion to determine whether disclosure to the assigned counsel is appropriate. If a letter includes information about disputed evidentiary facts or other information addressing the merits of the pending case, however, the judge should disclose this information to all parties after redacting any privileged information. Opinion 96-95 (Vol. XIV).
In addition, a judge, who receives information evincing a substantial likelihood a lawyer committed a substantial violation of the Code of Professional Responsibility, must take appropriate action. 22 NYCRR 100.3(D)(2); Opinion 04-116. A judge is not, however, required to conduct an investigation of alleged misconduct. Thus, if, after reading a litigant’s letter critical of his/her assigned counsel, a judge concludes there is a substantial likelihood that a lawyer has committed substantial violation of the Code of Professional Responsibility, the judge should take appropriate action, which may include referring the litigant’s complaint to the appropriate disciplinary authority.