Opinion 25-109
June 26, 2025
Digest: (1) A judge may continue to
preside in drug court cases in which a substance abuse treatment agency and/or
its director appear, notwithstanding that the judge has chosen to recuse from
city court criminal cases in which the director was the alleged victim after
receiving an improper ex parte communication from him/her.
(2) Where such communication (a) relied on the director’s access as a member of
the drug court team and (b) attempted to exonerate the city court defendant by
claiming to have deceived him/her, the judge must make an appropriate
disclosure in drug court cases when the judge determines that the director’s
credibility is at issue. After considering all relevant circumstances, the
judge retains sole discretion over the extent and timing of such disclosure.
(3) Disclosure is not otherwise required in drug court matters in which the
agency appears, where only the director’s subordinates testify or where the
judge determines that the director’s credibility is not at issue.
Rules: CPL § 140.10; 22 NYCRR 100.2; 100.2(A), (C); 100.3(E)(1); Opinions 20-195; 16-84; 14-121; 12-78; 07-78/07-121; 98-134; 89-104.
Opinion:
The inquiring full-time judge has been presiding in a series of domestic violence criminal cases in city court. The alleged victim is also the director of a local substance abuse treatment provider which comes before the judge in a county-wide drug treatment court as “a collaborating member of the Drug Court team.” The judge’s question focuses on his/her ethical obligations in the drug court after an unexpected development in city court.
In city court, notwithstanding a stay-away order of protection against the defendant in favor of the director, the two recently attempted to pass through border control together, and the defendant was arrested. The director then emailed the judge ex parte to explain “that [he/she] mispresented to the defendant that [he/she] had received permission from the court for them to travel together” and therefore “wanted to take full accountability for [the] misrepresentation and apologize to the court.” Although the judge sees this as an admission of “potentially criminal behavior,” the judge does not believe the director wanted or expected the defendant to be arrested; rather, it was the result of a routine check at the border for outstanding court orders or warrants.[1] The judge decided to disclose the communication to both sides and recuse from these criminal cases.
In drug treatment court, the director is “occasionally required to testify … in Drug Court sanction hearings, and hearings to determine termination petitions.” The judge has determined that he/she can be fair and impartial in drug court proceedings where the director appears, but asks if he/she must (1) disqualify in drug court cases where the director or the director’s agency is involved; and (2) disclose the ex parte communication to the drug court prosecutor and to counsel for each of the drug court participants in cases where the director is potentially a testifying witness.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not “convey or permit others to convey that they are in a special position to influence the judge” (22 NYCRR 100.2[C]) and must disqualify in any proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).
1. Recusal in Drug Court
From our earliest days as an Advisory Committee, we have recognized “[t]here is no per se requirement for disqualification of a judge based upon the judge’s having learned facts about a matter in a judicial capacity” (Opinion 89-104). As explained in Opinion 12-78 (citations and quotations omitted):
During the course of a proceeding, a judge in his/her judicial capacity may be exposed to both admissible and inadmissible information. The Committee has recognized that a judge, due to specialized learning, experience and judicial discipline, is uniquely capable of distinguishing the issues and of making an objective determination based upon appropriate legal criteria, despite his/her awareness of facts that cannot properly be relied upon in making the decision.
We have applied this principle in a wide variety of circumstances. For example, a judge who sits in both family court and county court need not recuse in a proceeding merely because it “involves basically the same persons and most of the same issues involved in a prior proceeding before the judge in the other court,” provided the judge concludes he/she can be impartial in the second proceeding (Opinion 89-104). Similarly, a judge who granted a criminal defendant’s post-trial motion to set aside a jury’s guilty verdict is not disqualified from presiding over the new trial, unless the judge questions his/her own ability to be impartial (see Opinion 12-78). Indeed, a judge need not recuse on the sole basis of the judge’s past decisions involving a party, even where the decision “was based primarily upon the judge’s assessment of the party’s credibility in that earlier action” (Opinion 98-134).
As relevant here, we have also said that a judge who presides both in a problem-solving court and in family court is not disqualified merely because a party appearing in the family court also appeared before the judge in the problem-solving court (Opinion 07-78/07-121). We said the judge may preside “unless the judge believes that he/she cannot be impartial, or he/she becomes a fact witness in the Family Court proceeding as the result of presiding in such Problem Solving Court proceedings” (id.).
Nor does the judge’s decision to recuse in the city court domestic violence criminal cases change the result. As we have advised, the fact that a judge “previously exercised recusal when a particular individual appeared does not necessarily require the judge to disqualify him/herself from all matters involving that individual in perpetuity” (Opinion 14-121). This is particularly true where “the initial recusal was not mandated by rules or prior opinions, but, rather, was undertaken as a purely prophylactic measure in the judge’s sole discretion” (Opinion 16-84).
The ex parte communication here offers a somewhat novel twist, as it was presumably the director’s status as a member of the drug court team that put him/her in a special position to contact the judge directly via email about the impending city court proceeding. Still, the standard is whether “the judge’s impartiality might reasonably be questioned” under the circumstances (22 NYCRR 100.3[E][1] [emphasis added]). In our view, the director’s inappropriate ex parte communication to the judge in connection with a protective order issued in the director’s favor cannot reasonably call the judge’s impartiality into question when the director appears as the representative of a substance abuse provider in the drug treatment court.
Accordingly, the inquiring judge may preside in drug court cases in which the director or the director’s agency is involved, provided the judge can be fair and impartial.
2. Disclosure in Drug Court
“A judge’s obligation to disclose a particular ex parte communication depends on the communication’s content, context and circumstances” (Opinion 20-195 [citation and quotation omitted]). As previously noted, the inquiring judge received a substantive ex parte communication from the director relating to one of the city court domestic violence criminal cases in which the director is the alleged victim. The judge has already decided to disclose that impermissible communication to both sides in the city court matter and to disqualify from the entire series of city court cases.
In our view, these actions fully dispel any appearance of impropriety here arising solely from the ex parte nature of the communication, as it did not contain any information relevant to the progress of drug court participants. Significantly, the judge has determined he/she can be impartial in drug court matters when the director appears solely in his/her professional capacity on behalf of the agency, notwithstanding the judge’s awareness of the director’s improper conduct when involved personally in a city court domestic violence matter as the alleged victim.
Further, we note that judges continually draw conclusions about litigants, witnesses, and attorneys -- some of them memorialized in published decisions or on the record –- which need not be revealed when those litigants, witnesses, or attorneys subsequently appear before the judge in the same or other capacities. We therefore expressly decline to adopt any “general rule” that would require a judge to disclose information from one case, which the judge becomes aware of in his/her judicial capacity, in other cases where such information could potentially be relevant for impeachment purposes. In this regard, we note that judges regularly continue to preside over matters involving attorneys they have sanctioned or parties whose testimony they have found flatly incredible, so long as the judge concludes in good conscience that he/she can be fair and impartial. Requiring judges to disclose such issues as a matter of judicial ethics would nullify our prior advice that “[r]ecusal is not required solely because in a prior unrelated action the judge’s ruling against the same party was based primarily upon the judge’s assessment of the party’s credibility in that earlier action” (Opinion 98-134).
Nonetheless, we conclude the present inquiry involves some extraordinary factors that require an exception to the general rule. First, the director apparently used his/her access as a member of the drug court team to contact the judge directly by email on a criminal matter in which the director was personally involved. Thus, this particular communication can be seen as an attempt by the director to leverage his/her status as a member of the drug court team in a city court criminal matter, as if he/she were “in a special position to influence the judge” (22 NYCRR 100.2[C]). Second, the director’s specific representation to the judge admitted, whether truly or falsely, to making a false representation to the city court defendant. On these specific facts, we conclude that, in drug court cases when the judge determines that the director’s credibility is at issue, the judge must make an appropriate disclosure. The extent and timing of disclosure are in the judge’s sole discretion after considering all relevant circumstances.
However, in all other drug court matters in which the agency appears, including matters where the director’s subordinates testify or matters where the judge concludes the director’s credibility is not at issue, the usual rule applies and disclosure is not required.
[1] According to the Office for the Prevention of Domestic Violence, protected parties “cannot violate [their] own order by contacting the person [they] are protected from” under applicable law; instead, the respondent “has a legal obligation to not make any contact or communicate with” the protected party (Orders of Protection | Office for the Prevention of Domestic Violence, https://opdv.ny.gov/orders-protection [last accessed Jul. 23, 2025], citing CPL § 140.10).