New York judicial conduct commission reportedly investigating alleged 'ex parte' conversation between Judge Engoron and uninvolved attorney about Trump civil fraud case

 May 10, 2024

Throughout his New York civil fraud trial and beyond, former President Donald Trump frequently accused the presiding Judge Arthur Engoron of being corrupt and unethical and of acting improperly in his handling of the proceedings.

There may be something to that as the New York State Commission on Judicial Conduct is reportedly investigating an alleged conversation about the case between Engoron and another attorney who was not involved in the matter, according to the Daily Caller.

That interaction may have violated a provision of the state's rules on judicial conduct that generally prohibits "ex parte" or outside communications about a case with uninvolved individuals, with some limited exceptions.

Local attorney reveals conversation with judge about Trump case

New York's WNBC reported that "high-profile" real estate attorney Adam Leitman Bailey shared during a Feb. 16 on-air interview -- the same day that Judge Engoron issued his final decision in the Trump civil fraud case -- that he had spoken with the judge about the case just a few weeks earlier after spotting him at the courthouse.

Bailey, who insisted that he was not fond of the former president, claims that he "explained" to the judge that the main fraud statute underlying the case had not been intended to be used to shut down a major company, particularly when there were no clear victims, in a manner that would disrupt the local economy -- an argument raised by Trump's attorneys that was rejected by Engoron.

"He had a lot of questions, you know, about certain cases. We went over it," Bailey, who has been a litigant in Engoron's courtroom "hundreds of times" and was providing WNBC with analysis on the civil fraud case, added in the Feb. 16 interview. The outlet noted that the attorney had had his law license suspended previously for unethical conduct, including threatening a witness and a tenant in separate cases.

"Ex parte" discussion may violate judicial conduct rules

WNBC further reported that the alleged conversation between the attorney Bailey and Judge Engoron may violate a provision of the New York Court System's Rules of Judicial Conduct, specifically Part 100.3(B)(6), which states in part, "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."

There are a couple of exceptions, however, such as for "scheduling or administrative purposes" that won't provide a "procedural or tactical advantage" to any involved parties or to "obtain the advice of a disinterested expert on the law" -- though both of those exceptions are contingent upon the judge providing notification and an opportunity to respond to the involved parties.

In response to Bailey's revelation, a spokesman for the State's Office of Court Administration, Al Baker, "No ex parte conversation concerning this matter occurred between Justice Engoron and Mr. Bailey or any other person. The decision Justice Engoron issued February 16 was his alone, was deeply considered, and was wholly uninfluenced by this individual."

Trump's attorney, Chris Kise, isn't buying that, though, and says the integrity of the case and Engoron's decisions are now in question. Kise told WNBC, "The code doesn’t provide an exception for 'well, this was a small conversation' or 'well, it didn’t really impact me' or 'well, this wasn’t something that I, the judge, found significant.' No. The code is very clear."

Alleged incident "should raise serious concerns"

WNBC noted that retired New York Appellate Judge Alan Scheinkman, who is now a legal ethics law professor, said he had questions about Bailey's account of the interaction, but acknowledged, "f there's any substantive dialogue about the law in a pending case, it should be disclosed. As for Bailey's on-air admission, the former judge added, "The fact that this lawyer made these statements -- unprompted -- during a recorded TV interview should raise serious concerns."

Bailey himself claimed in a second interview with the outlet that neither he nor the judge did anything wrong, but offered up contradictory comments as he said of the initial conversation, "We didn't even mention the word Donald Trump," but then admitted that the judge knew exactly which case they were discussing, as he added, "Well, obviously we weren't talking about the Mets."

The Daily Caller sought confirmation of the report that the New York State Commission on Judicial Conduct had opened up an investigation into the alleged conversation between Bailey and Engoron about the Trump case, but Commission Administrator Robert H. Tembeckjian only replied, "The Commission on Judicial Conduct is constrained by a strict confidentiality statute and has no comment on this matter."

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