The New York Advisory Committee on Judicial Ethics has issued an opinion addressing a judge’s obligations regarding ex parte communications from a litigant.

Opinion 25-17 clarifies that a judge is not required to disclose the contents of such communications unless they contain substantive information relevant to the underlying case.

The opinion stems from an inquiry by a judge who received multiple unsolicited letters from a criminal defendant, both when the defendant was unrepresented and after securing legal counsel. Despite efforts to discourage direct communication, the defendant sent letters, some addressed to the judge and others to attorneys or non-parties. The judge, who recently recused from the case, sought guidance on whether undisclosed ex parte communications must be shared with all counsel.

According to the committee, judicial ethics rules, specifically 22 NYCRR 100.2 and 100.3(B)(6), prohibit judges from initiating, permitting, or considering ex parte communications about pending or impending proceedings. A pending proceeding is one that has begun but not yet reached a final disposition, while an impending proceeding is one that is reasonably foreseeable but not yet started.

The committee emphasized that the need to disclose an ex parte communication depends on its content, context, and circumstances. If the communication includes information about disputed facts or addresses the case’s merits, the judge must disclose its substance to all parties. However, non-substantive communications, such as those expressing a non-party’s opinion or irrelevant matters, do not require disclosure if the judge can decide the case impartially without considering them. For example, the committee cited prior opinions where a judge received an ex parte letter commending a prior decision or a disciplinary complaint against the judge, neither of which required disclosure if the judge could remain impartial.

The opinion also addressed situations where a judge has not reviewed the communication’s content, stating there is no ethical obligation to disclose its receipt. Additionally, the committee noted that legal considerations, such as attorney-client privilege under CPLR § 4503, may limit disclosure of certain communications.

In this case, despite the judge’s recusal, the committee concluded that the judge must disclose any ex parte communications deemed substantive, at their discretion, while considering legal factors like privilege.