Hi, How Can We Help You?

The Promise of Impartiality

The Promise of Impartiality

  • August 16, 2023

Kenneth M. Stenger, Attorney and Partner at Stenger, Glass, Hagstrom, Lindars & Iuele LLP Stenger Diamond and Glass LLP

Lately, all we hear on the news is that our justice system has been corrupted. There is 1 one allegation after another that someone with power has abused the system. I would like to share a story of how that system is alive, well and keeping its promise to the people of Duchess County.

I represented a developer in the City of Poughkeepsie. The developer had a contract with the City to purchase the Pelton Mansion. Built by a wealthy family in the mid-1800s, today it is a dilapidated artifact.

My client’s plan received unanimous approval from the City of Poughkeepsie Planning Board. However, to get a building permit, my client required the approval of the City Historic Commission, which took the position that they would rather see the Mansion not be rehabilitated than see it surrounded by new housing. They refused to give my client approval, resulting in litigation. We lost the case.

I felt the Court had overlooked some important facts in reaching its decision, and I filed a motion to have the Court reconsider. While that motion was pending, something very unusual happened.

I received a call from the Historic Commission’s attorney. She told me that while searching the email files of a resigned Common Council member, she discovered an email from a vocal and visible opponent of my client’s project detailing how he secretly communicated with the Court.


The promise of our justice system depends on the public belief in the system’s impartiality. One of the ways that promise is kept is by the outright prohibition of ex-parte communication with the Court, requiring that any communication with the Court, whether from a litigant, lawyer or third-party, be disclosed to all parties involved in the litigation.

At this point, you might be asking why the Historic Commission’s lawyer called me about the correspondence she discovered and if she had violated some client obligation in doing so. The answer is found in the oath of office that every attornev takes when admitted to the Bar. We make a promise to vigorously represent our clients. However, we make a bigger promise to do no harm to the promise made to the public by our system of justice. Counsel for the historic Commission had honored that larger promise in making the disclosure to me.

When an ex-parte communication is discovered, the Court’s obligation is to give notice of that communication to all parties to the litigation and then to make a ruling that is appropriate under those circumstances. Usually, disclosure is a sufficient remedy unto itself.

This case was different because the ex-parte communications were made prior to the decision in favor of the Historic Commission and were not discovered until after the decision had been made. The remedy available to address the situation was the vacation of the decision. Thus, the discovery of the ex-parte communications and disclosure by the Historic Commission’s counsel had now placed the Historic Commission’s decision at risk.


I argued in front of Judge Michael Hayes that the clandestine nature and content of the ex-parte communications were so egregious that they cast a stain on the integrity of the decision that could only be cured by having the decision vacated. Opposing counsel argued that there was no evidence that the ex-parte communications had affected the Court’s decision in any manner whatsoever.

After hearing the argument and deliberating on the bench, Judge Hayes vacated the judgment. He made the observation that as unfair as the effect of that decision might be to the Historic Commission, the promise of impartiality in our justice system could only be kept by the decision being vacated.

Our judges and lawyers work every day to honor the promise that our system of justice has made to each of us. What happened here is proof of that. I am humbled to have been a part of it.

Original article written by Kenneth M. Stenger, as printed in the August 2023 edition of East Fishkill/Millbrook Living Magazine. ©2023 Best Version Media. All rights reserved.

Share Post