Opinion 03-110

August 13, 2004

Digest:         A judge has discretion to determine whether to advise the appropriate authorities as to possible illegal activity that is revealed in the course of testimony in a case pending before the judge.

Rules:          22 NYCRR 100.3(D);Opinions 88-55/88-103 (Vol. III), 96-54 (Vol. XIV).

Opinion:

         A town justice advises the Committee that in the course of proceedings before him/her involving an alleged violation of the Vehicle and Traffic Law relating to the registration of automobiles, evidence was received indicating that certain automobile dealerships were altering their records so as to register commercial vehicles as passenger vehicles, in violation of applicable statutes. The judge inquires whether he/she is obligated to report this illegal activity to the local district attorney or to the attorney general, and, if not so required, whether this Committee recommends that he/she report such conduct.

         The Rules Governing Judicial Conduct (22 NYCRR 100.3[D]) mandate that a judge who receives information indicating a substantial likelihood that another judge or an attorney has committed a substantial violation of the Rules Governing Judicial Conduct or the Code of Professional Responsibility, respectively, must take appropriate action. No similar rule has been adopted as to what is required if a judge receives information indicating that a litigant or witness appears to be guilty of unlawful conduct.

         In Opinions 88-85/88-103 (Vol. III) and 96-54 (Vol. XIV), this Committee discussed the probable reason for the distinction: the primary purpose of a legal proceeding is to ascertain the truth, and if litigants or witnesses know that the judge presiding at a trial is obligated to report illegal conduct revealed in the course of litigation, such litigants and witnesses might be unwilling to testify truthfully about such conduct. Therefore, as a general rule judges are granted the discretion, under the proper circumstances, of whether to report instances of illegal conduct revealed in the course of proceedings before the judge. The exercise of that discretion depends on a variety of circumstances, including the likelihood of injury if the conduct is not reported.

         Based upon what is before us in the present inquiry, we conclude the inquiring judge as a matter of judicial ethics is not required to report the allegations of illegal activity, but may, in the exercise of discretion, choose to do so.