Opinion 25-37
March 27, 2025
Digest: (1) During the period after a motion is heard and before the judge has issued a decision, the judge need not disclose that court personnel asked him/her for a status update on the motion for administrative purposes; or that the judge was exposed to a brief non-substantive comment about the motion which will not affect the judge’s decision.
(2) Where a letter from a party’s counsel to the judge about a pending motion is copied to all parties, it is not an ex parte communication. Whether the judge may consider it is a legal question we cannot address.
Rules: Judiciary Law § 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.3(B)(6); 100.3(B)(6)(a); 100.3(B)(7); 100.3(C)(1); 101.1; Opinions 25-17; 20-195; 16-156; 15-106; 98-144.
Opinion:
The inquiring judge heard a motion in a proceeding and is currently working on a draft decision on the motion. In the interim, several individuals have contacted the judge about the status of the proceeding. First, the chief court clerk asked the judge more than once about the case status and advised that the administrative judge “was looking for a status” on the pending motion. Second, a friend of the judge approached the judge unexpectedly, referenced the proceeding, and asked “Can you just sign the thing?” The friend then walked away.[1] Third, an attorney for one of the parties wrote a letter to the judge, copied to all parties, in which the attorney reiterated arguments made at the hearing and recited new unsworn facts relating to certain allegedly deteriorating conditions after the hearing. The letter asserts that the “situation is dire” and urges the judge to issue a decision. The inquiring judge believes he/she can be fair and impartial and is willing to preside, but asks for guidance on his/her ethical responsibilities in light of these unsolicited communications.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must “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]). For example, “[e]x parte communications that are made for scheduling or administrative purposes and that do not affect a substantial right of any party are authorized, provided the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication” (22 NYCRR 100.3[B][6][a] [further requiring notice and opportunity to respond “insofar as practical and appropriate”]).
A judge’s obligation to disclose a particular ex parte communication depends on the communication’s “content, context and circumstances” (Opinions 25-17; 20-195). Certainly, if the ex parte communication includes information about disputed evidentiary facts or other information addressing the merits of a case, a judge must disclose the substance of the communication to all parties (see Opinion 25-17). A judge need not necessarily disclose a non-substantive ex parte communication, however, “especially when the judge concludes he/she can decide the case without considering it” (id.). Thus, for example, we did not require disclosure when an ex parte communication merely commended the judge for his/her prior decision on a case (see Opinion 16-156) or simply expressed a non-party’s viewpoint on how the matter should be decided, but contained no relevant facts (see Opinion 98-144). In Opinion 15-106, a judge attended a bar association function while he/she had certain post-trial motions pending before him/her. One of the attorneys sat near the judge and – notwithstanding the judge’s efforts to discourage any conversation about the case – decided to “prais[e] the judge’s handling of bench conferences” to another attorney in the judge’s presence. We concluded the judge “need not disclose a brief and non-substantive conversation with counsel at a bar association function” and may continue to preside (id.).
In our view, the messages from the chief court clerk merely inquiring about the status of the pending matter and the court’s anticipated decision are not impermissible ex parte communications under Part 100. These intra-court communications are strictly administrative in nature (cf. 22 NYCRR 100.3[B][6][a]). Since they do not contain any asserted facts and do not appear to be an attempt to improperly influence the judge’s judicial decision-making process or the outcome of the case, we see no appearance of impropriety.[2] Thus, the judge’s receipt of these messages does not trigger any disclosure obligations.
The brief, non-substantive ex parte comment by the judge’s friend likewise creates no appearance of impropriety. While the comment may reflect a degree of impatience with perceived delay in issuance of the decision, it does not include any substantive facts or arguments. We have advised that a brief, non-substantive conversation in a casual context need not be disclosed (see Opinion 15-106). Here, too, disclosure is not required.
The letter from counsel includes unsworn facts and expresses concern about purported delays in issuance of the decision, culminating in a claim that the “situation is dire.” The letter is copied to opposing counsel and hence is not an ex parte communication at all. We can see no ethical impropriety in the judge considering it to the extent legally permitted. However, we cannot comment on any legal questions (see generally 22 NYCRR 101.1; Judiciary Law § 212[2][l]).
Thus, as the judge is confident he/she can be fair and impartial in resolving the underlying dispute, and has identified no potential conflicts that might require disqualification nor any ethical missteps by counsel that might need to be addressed, we conclude the judge has no further ethical obligations.
[1] The judge notes there is nothing to “sign” in the case, but only a written decision to issue.
[2] Indeed, given that a judge must “dispose of all judicial matters promptly, efficiently and fairly” (22 NYCRR 100.3[B][7]) and “should cooperate with other judges and court officials in the administration of court business” (22 NYCRR 100.3[C][1]), it is to be expected that administrative judges may sometimes inquire about the status of a case without attempting to influence the outcome.