Opinion 25-157
November 6, 2025
Digest: A judge must disqualify from a matter in which his/her impartiality might reasonably be questioned.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(B)(6); 100.3(E)(1); 100.3(E)(1)(a); Opinions 25-89; 23-18; 16-09; 00-95.
Opinion:
In a matter involving alleged violations of town ordinances, the defendant initially appeared without counsel and the inquiring judge adjourned the arraignment. After this initial appearance, the judge prepared a letter addressed directly to the defendant. The letter asserts “we all have the same goal” of “having your property conform to the Town Code” and recommends that the defendant “take pictures as progress is made and invite [] the code officer to confirm your progress” pursuant to “a regular schedule of inspections.” The letter also invites the defendant to “reach out to [the judge], [the code officer], and/or your attorney” if the defendant has “any questions.” The judge’s letter was emailed to defense counsel, the town attorney, the town code officer, and the town zoning board, and defense counsel was specifically asked to “see that your client gets a copy of this email.” At the next court appearance, the defendant entered a plea of “not guilty” and defense counsel asked the judge to recuse. The judge now asks if disqualification is ethically required.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must not “initiate, permit, or consider” ex parte communications concerning a pending proceeding, unless an exception applies (22 NYCRR 100.3[B][6]). A judge must also disqualify him/herself in a proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including instances where the judge has a personal bias or prejudice concerning a party (see 22 NYCRR 100.3[E][1][a]).
We have emphasized that judges must maintain their independence from prosecutors and not participate or assist in “what is essentially the work of the prosecutor’s office” (Opinion 00-95). In the context of a court’s proposed form letter to a defendant motorist, for example, we have explained that, while judges may “inform defendants charged with Vehicle and Traffic Law violations and other minor offenses of all their options,” they must not send documents that “fail to advise defendants of all their options, or that indicate a predisposition toward a particular option” (Opinion 23-18; see also e.g. Opinion 16-09 [explaining why particular proposed letter was be inconsistent with judicial independence]).
Here, regardless of the judge’s intentions, in our view this letter could readily create an impression that the judge has invited the defendant to engage in ex parte communications directly with the court concerning the merits of the alleged violations, including any “progress” on remedying them.[1] Given that the letter was sent before the matter had been adjudicated and even before the defendant had entered a formal plea, it could also create an impression that the judge has prejudged the defendant’s guilt.
On the specific facts presented, we conclude the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]) and thus the judge must disqualify him/herself from the matter.
[1] In addition, if the defendant were to take literally the invitation to “reach out” to the judge or the code officer with “any questions,” and did so by telephone, such conversations would be “entirely unrecorded and unmonitored by counsel for either side,” leaving both participants “potentially vulnerable to imperfect recollections and innocent misunderstandings” (Opinion 25-89).