Opinion 05-142

January 26, 2006

Digest:         A Judicial Hearing Officer (JHO) who also maintains a law practice and who, on behalf of a client, commences an Article 78 proceeding challenging alleged misconduct of a judge, may, but is not required to take any further action. By commencing the client's lawsuit, the JHO has met his/her disciplinary responsibility to take "appropriate action" regarding the alleged misconduct.

Rules:          22 NYCRR 100.3(D)(1), (3); 100.6(A); Opinions 97-84 (Vol. XVI); 03-59.

Opinion:

         A Judicial Hearing Officer (JHO) who also practices law is representing an attorney in an Article 78 proceeding brought against a sitting judge. The petition apparently addresses allegations that the sitting judge misused his/her contempt of court authority. The proceeding is pending in a county other than those counties in which the JHO is authorized to serve as a JHO. The JHO’s client has requested that the Article 78 issues be handled as discreetly as possible.

         The inquiring JHO asks if he/she has an obligation to report to disciplinary authorities, the alleged misconduct of the judge addressed in the Article 78 proceeding, while taking into consideration his/her client’s concerns.

         Judicial Hearing Officers, and other quasi-judicial officers, are required to comply with the Rules Governing Judicial Conduct “in the performance of their judicial duties and otherwise shall so far as practical and appropriate, use such rules as guides to their conduct.” 22 NYCRR 100.6(A). Section 100.3(D)(1) of the Rules requires a judge “who receives information indicating a substantial likelihood that another judge has committed a substantial violation” of the Rules, “shall take appropriate action”. The discharge of this responsibility is “part of a judge’s judicial duties.” 22 NYCRR 100.3(D)(3). Thus, a JHO is obligated to comply with section 100.3(D)(1).

         In applying 22 NYCRR 100.3(D)(1), the Committee has concluded that if a judge believes another judge’s violation of the Rules was insubstantial or merely technical, the judge has discretion whether to proceed further. It is only if the judge determines that the other judge’s conduct implicates a substantial ethics violation that the Rule imposes an obligation to proceed. As a general rule, a judge must make that determination for him/herself. Opinions 97-84 (Vol. XVI); 92-42 (Vol. IX); but see Opinion 03-59.

         Accordingly, if the conclusion reached is that what did occur in this matter constituted a substantial violation of the Rules, the JHO is obligated to take appropriate action. If, on the other hand, the inquirer concludes that, under all the circumstances, the violation was insubstantial or merely involved a technical violation of the Rules, the question of whether to proceed further is entirely within his/her discretion. Opinion 97-84 (Vol. XVI).

         This Committee, however, notes that the alleged misconduct of the judge appears, from the inquiry, to be described in allegations pending before a court, having been advanced by the inquirer in his/her role as a lawyer. This Committee therefore concludes that the JHO may, but is not required to take any further action, because, by commencing the action on behalf of the client, the JHO has met his/her burden to take appropriate action.

         Finally, it is not the role of this Committee to advise the inquiring JHO regarding his/her reporting obligations as an attorney under the Code of Professional Responsibility and therefore, we decline to address that issue.