Legally, that would known as having an 'ex-parte' discussion. It means a private discussion without the opposing side being there.
In New York, the answer is absolutely "No."
Anytime your case is scheduled for a conference, either a status conference, a settlement conference or anything where all attorneys on your case must appear in court, if one side shows up and the other doesn't, the attorney who shows up cannot speak to the judge privately about your case.
Why not? What's the big deal?
The big deal is that the attorney who was not present has no idea what was discussed. He has no idea if we have said things that will prejudice the judge in favor of us and against him. He has no idea if the conversation was simply about the weather.
The reality is that there is a perception that since he has been left out of a conversation, that he lost an oppotunity to gain favor with the judge or missed an opportunity to explain something critical to the judge.
Ex-parte communication with the judge is a big no-no. Even for something innocent and simple.
All attorneys have an obligation to be present for court conferences and if one side is unable to appear, they need to arrange with opposing counsel and the court an alternative date to appear.
There is only one real instance where having private conversations with the judge is permitted...
That is when the judge is having settlement negotiations with each side. In that instance he will usually start the conference off with both sides and then ask the defense to step out of the room. Then he will have a conversation with us about the merits of the case and what we think the case is worth. He will then have us wait outside while he speaks to the defense attorney.
In that instance, the judge is actually acting as a conduit and a settlement negotiator in an effort to bring both sides to a mutual agreement.
However, let's say we're in the middle of your trial and the judge takes a break. I cannot speak to the judge privately about some piece of evidence or a ruling of his unless my adversary is also present.
