Opinion 24-50
March 14, 2024
Digest: A judge presiding in a drug treatment court may engage in ex parte communications with the court’s resource coordinator. If the content involves outside information obtained from a non-court source, then notice should be given to the defense attorney. Otherwise there is no need to disclose the content of those communications to court participants.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(B)(1); 100.3(B)(6); 100.3(B)(6)(c), (e); Opinions 20-38; 15-209; 04-88; Admin Order of Chief Admin Judge of Cts AO/142/03.
Opinion:
A judge who presides in a drug treatment court asks whether, in that capacity, communications with the court’s resource coordinator[1] fall within the exception to the rule against ex parte communications, allowing the judge to consult with “court personnel whose function is to aid the judge in carrying out the judge’s adjudicative responsibilities” (22 NYCRR 100.3[B][6][c]).
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must “be faithful to the law and maintain professional competence in it” (22 NYCRR 100.3[B][1]). A judge may “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 (22 NYCRR 100.3[B][6]). One such exception is that 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][6][c]). This exception does not, on its face, require a judge to provide notice or an opportunity to respond (see Opinion 15-209). A judge may also “initiate or consider any ex parte communications when authorized by law to do so” (22 NYCRR 100.3[B][6][e]).
Drug treatment courts are considered “problem solving courts” in New York State. According to the court system’s website:
The basic concept behind drug courts involves a dramatic intervention by the court in cooperation with an entire team including the defense, prosecution, treatment, education, and law enforcement. In return for a promise of a reduced sentence, appropriate non-violent addicted offenders are given the option of entering voluntarily into court-supervised treatment. The rules and conditions of participation are clearly stated in a contract entered into by the defendant, the defense attorney, the district attorney, and the court.
Resource coordinators are employed by the Unified Court System and report to a chief clerk and project coordinator for the jurisdiction they serve. Recent job postings show that their duties include establishing and maintaining relationships with community partners and service providers; acting as the courtroom representative for problem-solving parts and units; preparing written reports; updating computer programs; and maintaining case files. The position requires experience in social work, a college degree and/or status as a credentialed alcoholism and substance abuse counselor.
We conclude that, for purposes of the ex parte communications rule, resource coordinators are court personnel whose “function is to aid [judges] in carrying out [their] adjudicative responsibilities” (22 NYCRR 100.3[B][6][c]). Resource coordinators are members of the drug court team and are uniquely qualified by virtue of their educational backgrounds, training, and experience, to assist judges in carrying out their duties in treatment courts.
Judges presiding in drug treatment courts are expressly authorized to “initiate, permit or consider ex parte communications with treatment providers, probation officers, law enforcement officials and other members of the drug court team who are not court personnel, provided that the absent party and his or her attorney have consented thereto” (Admin Order of Chief Admin Judge of Cts AO/142/03). We subsequently advised that a drug treatment court judge may engage in ex parte communications with court personnel “concerning information obtained by such personnel,” but should give the defendant’s attorney notice and a summary of the communication (see Opinion 04-88).[2]
Accordingly, we conclude that ex parte communications between treatment court judges and resource coordinators are permissible, but should be disclosed to the parties if they involve outside information obtained from non-court sources (e.g. updates from a chemical dependency counselor, advice from a social worker on approaching particular treatment issues).
Otherwise, resource coordinators should be considered the same as any other court staff and treatment court judges should feel free to consult with them without the need to disclose the content of the consultations to treatment court participants (cf. Opinions 20-38 [judge may discuss pending matters with “other judges and court clerks” at magistrates association meeting, assuming it is a confidential setting with no others present]; 15-209 [judges may consult ex parte with court personnel staffing the City, Town, and Village Courts Resource Center and need not disclose such communications]).