Opinion: 98-144

January 28, 1999

Digest: Under the special circumstances presented, the inquiring judge is not ethically obligated to disclose an attempted ex parte communication from a non-party which alleges no relevant facts, but merely expresses a view as to how a matter should be decided, and which is not considered by the judge.

Rule:     CPLR 105(d); 22 NYCRR 100.3(A); 100.3(B)(6);
              Opinion 96-95 (Vol. XIV).


            A judge who serves as licensing officer for pistol permits for the county in which the judge presides, inquires if those Rules Governing Judicial Conduct which specifically address ex parte communications apply to the judge sitting as a pistol permit licensing officer, and if so, whether it is ethically necessary to disclose an attempted ex parte communication from a non-party regarding an application.  As stated by the judge, the communication will not be taken into consideration in determining the outcome of the permit application.  Further, it must be noted the communication was by a non-party to the proceeding who set forth no allegations of fact, but simply expressed a view as to how the judge should decide the application.

            Section 100.3(B)(6) of the Rules Governing Judicial Conduct states:

                       A judge shall 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. 22 NYCRR 100.3(B)(6).

            An application for a pistol permit which comes before the judge for determination is a special proceeding.  CPLR 105(d).  As such, the judge's ethical conduct in entertaining and determining the application is governed by the Rules  Governing Judicial Conduct including, of course, those rules that address ex parte communications.  22 NYCRR 100.3(A); 100.3(B)(6).

            It is clear from the thorough factual recitation provided by the inquiring judge, and the judge's personal assurance, that based solely upon the substantial amount of evidentiary material properly submitted, this pistol permit application would be denied without regard to the additional, superfluous communication sought to have been made to the judge.  The permissibly introduced evidence includes such material as a verifiable history of domestic violence, alcohol abuse, narcotics abuse as well as prior criminal convictions of an alcohol related driving offense and larceny by the applicant.

            In light of the fact that the rules addressing ex parte communications prohibit the judge from "considering" ex parte communications, the judge is correct in not considering this communication in making the determination.  In a previous opinion, this Committee found that it would be improper for a judge to consider ex parte information communicated to the judge and determined that under the special circumstances presented in that inquiry it was deemed advisable for the judge to disclose the substance of the communication to all parties.  Opinion 96-95 (Vol. XIV).  But, while disclosure of ex parte communications inadvertently received may generally be advisable, it is not an absolute requirement, without regard to content, context and circumstances.  The judge, therefore, is vested with some discretion as to how to proceed where the circumstances are extraordinary.  Here, there was no purported factual information that was sought to be conveyed.  Rather it was an expression of a view point by a non-party, as to what the judge's determination should be.  As such, it has been disregarded in its entirety by the judge.  Further, in this instance, the inquiring judge has determined that there is reason to believe that disclosure of the attempted ex parte communication might well result in further domestic discord and subject the individual who proffered the communication to potential serious, perhaps even life-threatening, physical violence.

            It is the opinion of this Committee that, based solely on the circumstances described in the inquiry, it would not be a violation of the Rules Governing Judicial Conduct for the judge not to disclose the receipt of that kind of communication which was inadvertently received by the judge's staff and which is not taken into consideration by the judge in arriving at the determination.

            Finally, whether the judge should now make a record of what had occurred, and direct that it be sealed subject to disclosure upon judicial order, appears to the Committee to be a feasible, though not mandatory way of proceeding.