New York Law Review

Tag: ex parte communication

  • People v. Carr, 28 N.Y.3d 105 (2016): Limits on Ex Parte Communications with Witnesses

    People v. Carr, 28 N.Y.3d 105 (2016)

    An ex parte communication with a witness regarding a non-ministerial matter, without the presence of defense counsel, violates a defendant’s right to be present at trial and to confront witnesses.

    Summary

    The New York Court of Appeals reversed the defendant’s conviction, holding that the trial court committed reversible error when it conducted an in camera interview with a prosecution witness, in the absence of defense counsel, to determine if the witness’s migraine prevented him from testifying. The court found that this ex parte communication, concerning a potentially significant issue regarding the witness’s ability to testify, violated the defendant’s constitutional right to be present at trial and to confront witnesses. The court emphasized that ex parte communications are undesirable and should be rare, and the inquiry was not ministerial. The dissent argued the interview was permissible because it was merely ministerial.

    Facts

    A prosecution witness informed the prosecutor that he was unable to testify due to a migraine. The trial judge, at the prosecutor’s request, conducted an in camera interview with the witness to assess his condition. Defense counsel was not present during this interview. The judge subsequently granted an adjournment, and the witness testified the following day. The defense argued that the ex parte communication violated their rights.

    Procedural History

    The defendant was convicted at trial. The Appellate Division affirmed the conviction. The New York Court of Appeals reversed the Appellate Division’s decision, ordering a new trial.

    Issue(s)

    1. Whether the trial court’s in camera interview with a prosecution witness, in the absence of defense counsel, violated the defendant’s right to be present and to confront witnesses.

    Holding

    1. Yes, because the ex parte communication concerned a non-ministerial matter that potentially affected the witness’s testimony and the defense’s ability to cross-examine. It denied the defendant the opportunity to participate in a critical stage of the proceedings.

    Court’s Reasoning

    The court held that the trial court’s in camera interview violated the defendant’s rights. The court found the trial court’s actions were not merely ministerial, but concerned potentially significant evidence that defense counsel may have found useful during cross-examination. The court referenced the rule that “ex parte proceedings are undesirable, and they should be rare.” The court also found the trial court had not met the requirements for ex parte communication under the Rules Governing Judicial Conduct which state that “ex 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, and the judge, insofar as practical and appropriate, makes provision for prompt notification of other parties or their lawyers of the substance of the ex parte communication and allows an opportunity to respond” (22 NYCRR 100.3 [B] [6] [a]). The dissent argued that the trial court’s actions were ministerial and that the defendant’s rights were not violated.

    Practical Implications

    This case underscores the importance of defense counsel’s presence during any communication with witnesses that could affect the substance of their testimony, even if the communication appears related to scheduling. Attorneys should be vigilant about objecting to ex parte communications and insisting on their presence. The ruling emphasizes that trial courts must be cautious about conducting any discussions with witnesses outside the presence of all parties and their counsel. When the subject matter moves beyond purely administrative or scheduling matters, the defendant’s right to be present and to confront witnesses must be protected. This case strengthens the defendant’s rights in these situations. Later cases will likely cite this decision to challenge convictions where similar ex parte communications occur.

  • Matter of George, 22 N.Y.3d 322 (2013): Judicial Misconduct and Appearance of Impropriety

    Matter of George, 22 N.Y.3d 322 (2013)

    A judge must disqualify himself in any proceeding where his impartiality might reasonably be questioned, and prior warnings from the State Commission on Judicial Conduct regarding similar behavior are an aggravating factor in determining the appropriate sanction for judicial misconduct.

    Summary

    Glen R. George, a non-lawyer Justice of the Middletown Town Court, sought review of a determination by the State Commission on Judicial Conduct that sustained two charges of misconduct and recommended his removal from office. The first charge involved presiding over a traffic case involving a long-time friend and former employer without disclosing the relationship. The second involved ex parte communications with a prospective litigant. The Court of Appeals upheld the Commission’s determination, finding that the misconduct warranted removal, especially given a prior Letter of Caution from the Commission addressing similar conduct.

    Facts

    Justice George had a long-standing personal and professional relationship with Lynn Johnson. Johnson received a traffic ticket and appeared in Justice George’s court. George presided over the case without disclosing his relationship with Johnson. Johnson claimed a discrepancy on the ticket, and George dismissed the ticket sua sponte without notifying the prosecutor. Separately, a prospective litigant contacted the court intending to sue a neighbor. George engaged in ex parte communications, discouraged the litigant from pursuing the claim, and expressed views favoring the neighbor. The litigant later filed a complaint with the Commission on Judicial Conduct.

    Procedural History

    The State Commission on Judicial Conduct filed a Formal Written Complaint against Justice George. After a hearing, the Commission sustained both charges of misconduct. The Commission determined that Justice George’s conduct violated the Rules Governing Judicial Conduct and warranted his removal from office. Justice George sought review of the Commission’s determination in the New York Court of Appeals.

    Issue(s)

    Whether Justice George’s conduct, specifically presiding over a case involving a friend without disclosure and engaging in ex parte communications with a prospective litigant, constituted judicial misconduct warranting removal from office.

    Holding

    Yes, because Justice George failed to disqualify himself in a proceeding where his impartiality could reasonably be questioned and engaged in inappropriate ex parte communications, and because a prior warning from the Commission regarding similar behavior was an aggravating factor.

    Court’s Reasoning

    The Court of Appeals found that Justice George’s decision to hear a case involving a friend and former employer without disclosing the relationship violated the Rules Governing Judicial Conduct, which require a judge to disqualify himself in proceedings where impartiality might reasonably be questioned. The court emphasized that the perception of the seriousness of the case is irrelevant to the duty to recuse or disclose a relationship. The court also noted that the prior Letter of Caution from the Commission regarding similar behavior involving Johnson’s daughter-in-law was a significant aggravating factor. The court quoted the prior warning: “Because of your long relationship with the Johnson family, you should have considered whether presiding over [those] cases gave the appearance that you could not be impartial.”

    The court also condemned Justice George’s ex parte communications with the prospective litigant, finding that his statements discouraged the litigant from pursuing his claim. The court cited 22 NYCRR 100.3 (B) (6), stating that “[a] judge shall not initiate, permit, or consider ex parte communications…concerning a pending or impending proceeding.” The court found that this conduct was antithetical to the role of a judge and created the impression of bias.

    The Court of Appeals concluded that, despite Justice George’s long tenure, the serious nature of the misconduct, particularly in light of the prior warning from the Commission, warranted his removal from office. The court stated, “Hypertechnical arguments— such as the view that petitioner had no duty to recuse himself or disclose the relationship because Johnson sold the company to his sons in 1997 or because the Commission did not specifically direct petitioner to recuse himself in future cases involving the Johnson family—fail to appreciate a judge’s continuing obligation to avoid even the appearance of impropriety.”

  • In re LaBombard, 12 N.Y.3d 294 (2009): Judicial Misconduct and Appearance of Impropriety

    In re LaBombard, 12 N.Y.3d 294 (2009)

    A judge must avoid even the appearance of impropriety and should recuse themselves from cases where their impartiality might reasonably be questioned, especially when family members or close associates are involved.

    Summary

    Justice LaBombard was found to have engaged in serious judicial misconduct by presiding over cases involving his step-grandchildren, intervening in a case involving his step-grandson pending in another court, presiding over a case involving the son of a former coworker, and improperly invoking his judicial status after a minor traffic accident. The New York Court of Appeals agreed with the Commission on Judicial Conduct’s recommendation that he be removed from office, emphasizing the importance of maintaining public confidence in the impartiality of the judiciary and avoiding any appearance of favoritism or misuse of judicial office.

    Facts

    Justice LaBombard, a Town Justice since 1996, faced several charges of misconduct. These included presiding over a criminal trespass case involving his step-grandchildren, contacting another judge regarding a case involving his step-grandson, presiding over the arraignment of the son of a former coworker, and invoking his judicial status following a minor traffic accident. In the case involving his step-grandchildren, he adjourned the case without imposing a community service requirement initially offered by the prosecution. In the case of his step-grandson, he contacted the presiding judge and vouched for his character. Regarding the former coworker’s son, he released the defendant on his own recognizance after an ex parte communication with the defendant’s mother. After a minor car accident, he repeatedly identified himself as a judge to the other driver.

    Procedural History

    The Commission on Judicial Conduct filed a complaint against Justice LaBombard. After a hearing, the Referee sustained four charges of misconduct. The Commission recommended removal from office. Justice LaBombard sought review of the Commission’s determination by the New York Court of Appeals.

    Issue(s)

    1. Whether Justice LaBombard engaged in judicial misconduct by presiding over a case involving his step-grandchildren.
    2. Whether Justice LaBombard engaged in judicial misconduct by contacting another judge regarding a case involving his step-grandson.
    3. Whether Justice LaBombard engaged in judicial misconduct by presiding over the arraignment of the son of a former coworker and engaging in ex parte communications with the defendant’s mother.
    4. Whether Justice LaBombard engaged in judicial misconduct by invoking his judicial status following a minor traffic accident.
    5. Whether removal from office is the appropriate sanction for the sustained charges of judicial misconduct.

    Holding

    1. Yes, because handling a case involving family members creates an appearance of impropriety and undermines public confidence in the judiciary.
    2. Yes, because intervention by a judge in proceedings involving family members pending in another court, particularly through ex parte contact, is improper.
    3. Yes, because presiding over a case where the judge’s impartiality might reasonably be questioned, coupled with ex parte communications, creates an appearance of favoritism.
    4. Yes, because invoking judicial status to influence or intimidate others is an improper use of the prestige of judicial office.
    5. Yes, because given the seriousness of the transgressions, including intentional violations of recusal rules and misuse of judicial office, removal is the appropriate sanction.

    Court’s Reasoning

    The Court of Appeals emphasized that judges must conduct themselves in a manner that inspires public confidence in the judiciary’s integrity, fair-mindedness, and impartiality. The Court cited the Rules Governing Judicial Conduct, specifically sections 100.2(C), 100.3(B)(6), and 100.3(E)(1), which address lending the prestige of judicial office, ex parte communications, and disqualification based on potential impartiality. The Court found that Justice LaBombard’s actions in each instance violated these rules. “As a Judge, petitioner was under a duty to conduct himself in such a manner as to inspire public confidence in the integrity, fair-mindedness and impartiality of the judiciary” (Matter of Esworthy, 77 NY2d 280, 282 [1991]). Regarding the family matters, the court stated, “The handling by a judge of a case to which a family member is a party creates an appearance of impropriety as well as a very obvious potential for abuse, and threatens to undermine the public’s confidence in the impartiality of the judiciary” (Matter of Wait, 67 NY2d 15, 18 [1986]). Even without a specific request for favorable treatment, the intervention itself is misconduct. The ex parte communication and subsequent release of the former coworker’s son created an appearance of favoritism. Invoking his judicial status after the traffic accident was deemed an attempt to misuse his office for personal advantage. The Court concluded that removal was appropriate due to the seriousness of the misconduct and Justice LaBombard’s apparent failure to appreciate the impropriety of his actions, demonstrating “a willingness to misuse his judicial office for personal advantage—a quality that is antithetical to the judicial role.”

  • Arons v. Jutkowitz, 9 N.Y.3d 393 (2007): Permissibility of Ex Parte Interviews with Treating Physicians After HIPAA

    Arons v. Jutkowitz, 9 N.Y.3d 393 (2007)

    An attorney may conduct ex parte interviews with an adverse party’s treating physician when the party has placed their medical condition in controversy, subject to HIPAA’s procedural prerequisites.

    Summary

    This case addresses whether an attorney can privately interview an opposing party’s treating physician in a medical malpractice case. The New York Court of Appeals held that such interviews are permissible, provided the attorney adheres to the requirements of the Health Insurance Portability and Accountability Act (HIPAA). By placing their medical condition at issue in a lawsuit, a plaintiff waives the physician-patient privilege. HIPAA does not prohibit these interviews but requires either a valid authorization from the patient or a court order to ensure compliance with privacy regulations. This decision clarifies the interaction between informal discovery practices and federal patient privacy laws.

    Facts

    In three separate medical malpractice cases consolidated for appeal, plaintiffs refused to provide HIPAA-compliant authorizations allowing defense counsel to interview their treating physicians. The plaintiffs argued that defense counsel were limited to formal discovery methods under the CPLR. The defendant physicians sought these interviews to gather information relevant to the medical conditions placed at issue by the lawsuits.

    Procedural History

    In Arons v. Jutkowitz, the Supreme Court granted the defendant’s motion to compel the plaintiff to provide authorizations. The Appellate Division reversed, holding that ex parte interviews were not authorized by the CPLR. In Webb v. New York Methodist Hospital, the Supreme Court granted a similar motion, but the Appellate Division reversed based on its decision in Arons. In Kish v. Graham, the Supreme Court granted the motion to compel authorizations, but the Appellate Division reversed, again relying on Arons. The Court of Appeals granted leave to appeal in all three cases to resolve the issue.

    Issue(s)

    Whether an attorney may interview an adverse party’s treating physician privately when the adverse party has affirmatively placed his or her medical condition in controversy, subject to HIPAA’s procedural prerequisites.

    Holding

    Yes, because by bringing a lawsuit that places their medical condition at issue, a plaintiff waives the physician-patient privilege, and HIPAA does not prohibit ex parte interviews but imposes procedural requirements for obtaining protected health information.

    Court’s Reasoning

    The Court of Appeals relied on the principles established in Niesig v. Team I and Muriel Siebert & Co., Inc. v. Intuit Inc., which emphasized the importance of informal discovery practices in litigation. The court reasoned that a litigant waives the physician-patient privilege when bringing a personal injury action by affirmatively placing their mental or physical condition in issue. “[A] party should not be permitted to affirmatively assert a medical condition in seeking damages or in defending against liability while simultaneously relying on the confidential physician-patient relationship as a sword to thwart the opposition in its efforts to uncover facts critical to disputing the party’s claim” (Dillenbeck v Hess, 73 NY2d 278, 287 [1989]). The court rejected the argument that the absence of express authorization for ex parte interviews in CPLR Article 31 prohibited the practice. The court emphasized that attorneys have always sought to interview potential witnesses as part of trial preparation. HIPAA does not preempt state law on ex parte interviews; instead, it imposes procedural prerequisites. To conduct an interview, an attorney must obtain a valid HIPAA authorization, a court order, or a subpoena with satisfactory assurances regarding notification or a qualified protective order. The court noted the long-standing practice of New York trial attorneys engaging in ex parte interviews with treating physicians, particularly in malpractice actions after the note of issue was filed. Finally, the court reversed the lower courts’ orders requiring defense counsel to disclose all materials obtained during the interviews, finding those stipulations inconsistent with Niesig and Siebert.

  • In re Marshall, 8 N.Y.3d 742 (2007): Judicial Removal for Ex Parte Communication and False Testimony

    In re Marshall, 8 N.Y.3d 742 (2007)

    A judge may be removed from office for engaging in improper ex parte communications with defendants and subsequently providing false testimony to the State Commission on Judicial Conduct regarding those communications.

    Summary

    This case concerns the removal of a Town Justice, Jean Marshall, for engaging in improper ex parte communications with defendants in building code violation cases and subsequently lying about these communications to the State Commission on Judicial Conduct. The Commission brought two charges against Marshall: improper communication and dismissal of cases without proper notice, and false testimony and alteration of court records. The Court of Appeals agreed with the Commission’s findings that Marshall violated the standards of integrity required of the judiciary and upheld her removal from office, emphasizing the seriousness of her lack of candor and the existence of objective proof contradicting her statements.

    Facts

    Jean Marshall, Justice of the Cuyler Town Court, engaged in ex parte conversations with three defendants in building code violation cases, informing them they did not need to appear in court as scheduled. At the scheduled court session, Marshall told the town’s attorney and code enforcement officer that the cases would be adjourned to January 26, 2004, and noted the date in her calendar. Prior to that date, Marshall dismissed the cases sua sponte without notifying the town’s attorney or code enforcement officer. When questioned by the State Commission on Judicial Conduct, Marshall falsely testified that she had not adjourned the cases and altered her court calendar to conceal the original adjourned date.

    Procedural History

    The State Commission on Judicial Conduct filed a formal complaint against Justice Marshall. A Referee was designated to hear the case and reported that Marshall failed to properly perform her duties regarding the ex parte communications but found insufficient evidence to support the false testimony and record alteration charges. The Commission upheld both charges and determined Marshall should be removed. The New York Court of Appeals reviewed the Commission’s determination.

    Issue(s)

    1. Whether Justice Marshall engaged in judicial misconduct by engaging in improper ex parte communications and dismissing cases without proper notice to the prosecutor?

    2. Whether Justice Marshall engaged in further judicial misconduct by providing false testimony to the State Commission on Judicial Conduct and altering court records to conceal her actions?

    Holding

    1. Yes, because Justice Marshall failed to properly perform the duties of her office by engaging in ex parte communications and dismissing cases without providing the prosecutor notice or an opportunity to be heard.

    2. Yes, because Justice Marshall provided patently false explanations to the Commission despite contrary objective proof, and attempted to conceal her misconduct by altering official court records.

    Court’s Reasoning

    The Court of Appeals emphasized that neither the Commission nor the Court is bound by the Referee’s findings, possessing the authority to review findings of fact and determine the appropriate sanction in judicial misconduct cases. The Court found that the record clearly demonstrated Marshall’s improper ex parte communications and subsequent dismissal of cases without proper notification. Critically, the Court highlighted Marshall’s false testimony to the Commission and her alteration of the court calendar as egregious violations of judicial ethics. The court quoted Matter of Kiley, 74 N.Y.2d 364, 371, 370 (1989), stating that while caution should be exercised in using a judge’s lack of candor as an aggravating circumstance, removal is appropriate “where the Judge who was to be sanctioned gave patently false explanations to the Commission despite contrary objective proof.” The Court concluded that Marshall’s actions violated the high standards of integrity required of the judiciary, warranting her removal from office. The Court emphasized the seriousness of providing false explanations to the Commission when confronted with objective proof of misconduct.

  • Muriel Siebert & Co., Inc. v. Intuit Inc., 8 N.Y.3d 506 (2007): Ex Parte Contact with Former Employees

    8 N.Y.3d 506 (2007)

    Adversary counsel may conduct ex parte interviews of an opposing party’s former employee, so long as measures are taken to avoid eliciting privileged or confidential information.

    Summary

    This case addresses whether Intuit’s attorneys should be disqualified from representing Intuit because they conducted an ex parte interview with a former employee of Muriel Siebert & Co. (Siebert) who had been involved in the underlying litigation. The New York Court of Appeals held that disqualification was not warranted because Intuit’s attorneys had cautioned the former employee against disclosing privileged information, and no such information was disclosed. The court emphasized the importance of informal discovery while also underscoring the need to safeguard attorney-client privilege.

    Facts

    Siebert and Intuit entered into a strategic alliance to create an Internet brokerage service. A dispute arose, and Siebert sued Intuit. Nicholas Dermigny, an executive at Siebert and part of Siebert’s litigation team, was terminated. Intuit’s attorneys, without Siebert’s consent, contacted and interviewed Dermigny after advising him not to disclose privileged or confidential information. Siebert sought to disqualify Intuit’s counsel, arguing an appearance of impropriety.

    Procedural History

    The Supreme Court granted Siebert’s motion, disqualifying Intuit’s attorneys. The Appellate Division reversed, finding no basis for disqualification because Intuit’s attorneys cautioned Dermigny against disclosing privileged information and no such information was disclosed. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether Intuit’s attorneys should be disqualified from representing Intuit in a lawsuit brought by Siebert because they conducted an ex parte interview with Siebert’s former employee who possessed privileged information about the litigation.

    Holding

    No, because Intuit’s attorneys cautioned the former employee against disclosing privileged information and, based on the record, no privileged information was disclosed.

    Court’s Reasoning

    The Court of Appeals relied on its prior decision in Niesig v. Team I, which addressed ex parte communications with current employees. The court extended the principles of Niesig to former employees, holding that ex parte interviews are permissible as long as counsel takes measures to avoid eliciting privileged or confidential information. The court emphasized the importance of informal discovery in resolving claims promptly. The court stated, “so long as measures are taken to steer clear of privileged or confidential information, adversary counsel may conduct ex parte interviews of an opposing party’s former employee.”

    The court cautioned that the right to conduct ex parte interviews is not a license to elicit privileged information. Attorneys must still conform to ethical standards. In this case, Intuit’s attorneys properly advised Dermigny of their representation and interest in the litigation and directed him to avoid disclosing privileged information. Because no such information was disclosed, there was no basis for disqualification.

    The court noted, “Counsel must still conform to all applicable ethical standards when conducting such interviews (see e.g. Code of Professional Responsibility DR 1-102 [a] [5] [22 NYCRR 1200.3 (a) (5)]; Niesig, 76 NY2d at 376…).”

  • People v. DePallo, 96 N.Y.2d 437 (2001): Defense Counsel’s Duty When Client Intends to Commit Perjury

    96 N.Y.2d 437 (2001)

    When a criminal defendant insists on committing perjury, defense counsel acts appropriately by informing the court of the situation, allowing the defendant to testify in narrative form, and refraining from referring to the perjured testimony during summation.

    Summary

    DePallo was convicted of murder and robbery. Prior to trial, he admitted involvement in the crime to his attorney but later insisted on testifying that he was home the entire evening. His attorney, believing this testimony would be perjury, informed the court. At trial, DePallo testified in narrative form without direct questioning from his counsel. His attorney did not mention the testimony during closing arguments. The New York Court of Appeals affirmed the conviction, holding that the attorney acted ethically and did not deprive the defendant of effective assistance of counsel. The court clarified a defense attorney’s duty when confronted with a client intending to commit perjury, balancing zealous advocacy with the duty to the court.

    Facts

    DePallo and accomplices attacked and killed a 71-year-old man. DePallo’s blood and fingerprint were found at the crime scene, and he made incriminating statements to the police. He later admitted during pretrial proceedings that he had forced an accomplice to participate under threat of death. At trial, DePallo’s attorney advised him not to testify, but DePallo insisted. He then testified he was home the night of the murder, contradicting his earlier statements.

    Procedural History

    DePallo was convicted of second-degree murder (intentional and felony murder), first-degree robbery, and first-degree burglary. The Appellate Division affirmed. A judge of the Court of Appeals granted leave to appeal. The New York Court of Appeals then affirmed the Appellate Division’s decision, upholding the conviction.

    Issue(s)

    1. Whether defense counsel’s disclosure to the court of the defendant’s intent to commit perjury constituted ineffective assistance of counsel.

    2. Whether the defendant’s right to be present during a material stage of trial was violated by his absence from the ex parte communication between the court and his attorney.

    Holding

    1. No, because defense counsel appropriately balanced the duty to zealously represent the client with the duty to prevent fraud upon the court.

    2. No, because the ex parte communication was merely procedural and had no bearing on the defendant’s ability to defend against the charges.

    Court’s Reasoning

    The Court reasoned that a defendant does not have a right to commit perjury, and the Sixth Amendment does not compel counsel to assist in presenting perjured testimony. Defense counsel has a duty to zealously represent a client, but that duty is circumscribed by the duty to comply with the law and prevent fraud upon the court. The court cited DR 7-102 of the New York Code of Professional Responsibility, which prohibits an attorney from knowingly using perjured testimony or false evidence. The court noted that counsel first tried to dissuade DePallo from testifying falsely. Once DePallo insisted, counsel properly notified the court. The Court distinguished this case from situations where the disclosure of perjury occurs during a bench trial. Regarding the defendant’s absence from the ex parte communication, the Court held that the proceeding was procedural and did not require DePallo’s presence, as it involved matters of law with no potential for meaningful input from the defendant. The Court cited Nix v. Whiteside, 475 U.S. 157 (1986), stating, “[S]ince there has been no breach of any recognized professional duty, it follows that there can be no deprivation of the right to assistance of counsel.”

  • People v. Ortega, 78 N.Y.2d 1101 (1991): The Consequences of Ex Parte Communication with Witnesses

    People v. Ortega, 78 N.Y.2d 1101 (1991)

    A trial court’s private, off-the-record communication with a witness regarding a material issue in a criminal trial violates the defendant’s rights, even if the precise impact of the communication on the court’s ultimate decision is unclear.

    Summary

    The defendant was convicted of criminal sale and possession of a controlled substance after an undercover officer, introduced by a confidential informant, purchased cocaine from him. During cross-examination, the officer refused to reveal the informant’s identity. The trial judge then held a private, unrecorded meeting with the officer to discuss the potential disclosure issue under People v. Goggins. The New York Court of Appeals reversed the conviction, holding that the private conference violated the defendant’s rights because it was a material part of the trial, and the record did not definitively show that the conference did not influence the court’s decision regarding disclosure of the informant’s identity. The court emphasized that the lack of a record made it impossible to determine whether the officer’s statements in chambers influenced the judge.

    Facts

    A confidential informant introduced an undercover police officer to the defendant.

    The undercover officer purchased cocaine from the defendant.

    During the defendant’s trial for criminal sale and possession of a controlled substance, the undercover officer refused to disclose the identity of the confidential informant during cross-examination.

    The trial judge held an ex parte conference with the officer without the presence or knowledge of either party or counsel.

    The stated purpose of the conference was to advise the witness about a potential Goggins problem (regarding the need to disclose the informant’s identity) and to persuade him to voluntarily disclose the informant’s identity.

    Procedural History

    The defendant was convicted of two counts of criminal sale and possession of a controlled substance in the trial court.

    The Appellate Division affirmed the conviction.

    The New York Court of Appeals reversed the Appellate Division’s order and overturned the conviction.

    Issue(s)

    Whether a trial court’s ex parte communication with a witness during a criminal trial, concerning a material issue, violates the defendant’s rights when the content of the communication is unrecorded and its impact on the court’s decision is unclear.

    Holding

    Yes, because the inquiry was a material part of the trial, and there was no record to definitively show that the conference did not influence the court’s decision regarding disclosure of the informant’s identity.

    Court’s Reasoning

    The Court of Appeals found that the ex parte conference was a material part of the trial, invoking precedent such as People v. Turaine and People v. Darby which established a defendant’s right to be present during material stages of a trial. The Court emphasized the lack of a record of the conversation, stating, “There is no record, however, to show what was said in chambers or whether it contributed to the court’s decision that disclosure was not required.”

    The court reasoned that it was possible the officer presented an unrebutted view of the facts that influenced the trial court’s subsequent decision regarding disclosure. The court highlighted the potential prejudice to the defendant, noting, “At least, the conference must be viewed in that light on the present state of the record.”

    The court rejected the People’s argument that no Goggins issue was raised during the conference because the judge only intended to persuade the officer to disclose voluntarily. The court’s decision underscores the importance of transparency and the defendant’s right to be present and represented during all material stages of a trial to ensure a fair adversarial process.

  • Niesig v. Team I, 76 N.Y.2d 363 (1990): Defining ‘Party’ for Attorney Communication with Corporate Employees

    Niesig v. Team I, 76 N.Y.2d 363 (1990)

    For the purposes of Disciplinary Rule 7-104(A)(1), a ‘party’ includes corporate employees whose acts or omissions in the matter under inquiry are binding on the corporation (alter egos), imputed to the corporation for liability purposes, or those implementing the advice of counsel; all other employees may be interviewed informally.

    Summary

    Plaintiff, injured at a construction site, sought to privately interview employees of the general contractor (J.M. Frederick) and the property owner (Team I). These employees were witnesses to the accident. The defendants opposed, arguing Disciplinary Rule 7-104(A)(1) barred such contact without their consent. The New York Court of Appeals held that not all corporate employees are considered ‘parties’ under the rule. The Court rejected a blanket ban on communication with all employees and the narrow ‘control group’ test, instead defining ‘party’ to include those whose actions bind or are imputed to the corporation, or those implementing legal advice. Other employees can be interviewed informally, balancing fairness to the corporation with the need for open access to information.

    Facts

    Plaintiff was injured in a fall at a construction site while employed by DeTrae Enterprises, Inc. J.M. Frederick was the general contractor, and Team I owned the property. Plaintiff sued Frederick and Team I, who then filed a third-party action against DeTrae. Plaintiff sought permission to conduct ex parte interviews with DeTrae employees who witnessed the accident, arguing they were not managerial or controlling employees.

    Procedural History

    The Supreme Court denied plaintiff’s request. The Appellate Division modified the ruling, limiting the ban to DeTrae’s current employees. The Appellate Division reasoned that current employees were presumptively within the scope of representation of DeTrae’s attorneys, citing Upjohn Co. v. United States. Plaintiff appealed to the New York Court of Appeals.

    Issue(s)

    Whether employees of a corporate party are considered ‘parties’ under Disciplinary Rule 7-104(A)(1), which prohibits a lawyer from communicating directly with a party known to have counsel, and if so, which employees are included in that definition?

    Holding

    Yes, in part. The Court of Appeals modified the Appellate Division order to allow the interviews. The court held that the definition of “party” under DR 7-104(A)(1) includes corporate employees whose acts or omissions in the matter under inquiry are binding on the corporation, are imputed to the corporation for liability, or are responsible for implementing the advice of counsel because these employees are closely identified with the corporation’s interests. All other employees may be interviewed informally.

    Court’s Reasoning

    The Court reasoned that disciplinary rules should be applied with regard for the interests of non-lawyers involved in litigation. DR 7-104(A)(1) embodies principles of fairness, preventing lawyers from taking advantage of represented parties. While the rule applies to corporations, defining ‘party’ is difficult. The Court rejected a blanket rule barring contact with all employees because it would foreclose vital informal access to facts. The Court also rejected the ‘control group’ test as too narrow, as other employees can also bind the corporation. The Court adopted a test defining ‘party’ to include employees whose acts or omissions are binding on or imputed to the corporation, or those implementing legal advice. This test balances competing interests by protecting the corporation from unfair advantage while permitting access to relevant information. The court stated, “The potential unfair advantage of extracting concessions and admissions from those who will bind the corporation is negated when employees with ‘speaking authority’ for the corporation, and employees who are so closely identified with the interests of the corporate party as to be indistinguishable from it, are deemed ‘parties’ for purposes of DR 7-104 (A) (1).” The court emphasized that attorneys should make their identity and interest known and comport themselves ethically during such interviews. This approach is rooted in evidence and agency law and is consistent with the majority of jurisdictions. The court emphasized that the rule only applies to current employees, not former employees.

  • In re Levine, 78 N.Y.2d 294 (1991): Judicial Impropriety and Sanctions for Ex Parte Communication and False Statements

    In re Levine, 78 N.Y.2d 294 (1991)

    A judge’s promise to a political leader to adjourn a case, coupled with false statements to the FBI about the interaction, warrants removal from judicial office due to the jeopardizing of public confidence in the judiciary’s integrity.

    Summary

    Judge Levine was charged with violating judicial conduct rules for promising a political leader to adjourn a case and then lying to the FBI about it. The New York Commission on Judicial Conduct recommended his removal. The New York Court of Appeals agreed, finding that Levine’s actions created the appearance of impropriety, undermined the judiciary’s integrity, and warranted the severe sanction of removal. The court emphasized that promising favors based on political influence and then lying about it erode public trust in the impartiality of the courts.

    Facts

    Meade Esposito, a former political leader, contacted Judge Levine about a case, 2121 Emmons Ave. Corp. v Randazzo Clam Bar, pending before him. Esposito requested an adjournment of approximately three months. Levine promised Esposito he would grant the adjournment. Subsequently, Levine adjourned the case multiple times. When questioned by the FBI, Levine falsely stated that he did not recall discussing the Randazzo Clam Bar case with Esposito, claiming he lied to protect Esposito.

    Procedural History

    The New York Commission on Judicial Conduct sustained charges against Judge Levine and recommended his removal from office. Judge Levine sought review by the New York Court of Appeals, conceding his conduct was improper but arguing removal was too harsh. The Court of Appeals upheld the Commission’s determination and ordered Levine’s removal.

    Issue(s)

    Whether a judge’s promise to a political leader to adjourn a pending case, coupled with subsequent false statements to the FBI regarding the matter, constitutes judicial misconduct warranting removal from office.

    Holding

    Yes, because such conduct jeopardizes public confidence in the integrity and impartiality of the judiciary, which is indispensable to the administration of justice.

    Court’s Reasoning

    The Court of Appeals found that Judge Levine’s promise to Esposito created the appearance that the political leader had special influence over his decisions, violating judicial conduct rules against conveying such impressions. The court emphasized that ex parte communications concerning pending matters are inherently improper. The court cited Section 100.2(c) of the Rules Governing Judicial Conduct. “In agreeing to adjourn the case, petitioner conveyed the impression that the former political leader was in a special position to influence his decision making, contrary to the provisions of section 100.2(c) of the Rules Governing Judicial Conduct (22 NYCRR 100.2 [c]).” By lying to the FBI, Judge Levine further exacerbated his misconduct. The court determined that these actions undermined the public’s trust in the judiciary’s impartiality, thus warranting removal from office as the appropriate sanction. The court referenced prior precedent including Matter of Cunningham, 57 NY2d 270, 274-275 and Matter of Cohen, 74 NY2d 272, 278 to reinforce the seriousness of the misconduct and the justification for removal.