Opinion 08-146

October 23, 2008

Digest:         A judge must determine whether another judge’s conduct constitutes a “substantial violation” of the Rules Governing Judicial Conduct triggering the judge’s obligation to take appropriate action.

Rules:         22 NYCRR 100.1; 100.2; 100.2(A); 100.3(D)(1); 100.3(E); Opinions 07-200; 05-142; 00-64 (Vol. XIX); 98-95 (Vol. XVII); 92-42 (Vol. IX). 

Opinion:

         The inquiring judge asks about his/her reporting obligations regarding two actions taken by a co-judge. First, the inquiring judge states that his/her co-judge disqualified him/herself from two cases involving a defendant whom the co-judge knows personally. Later, when the same defendant was arrested again, the co-judge did not disqualify him/herself from the case.

         Second, the inquiring judge states that he/she disqualified him/herself from a case where his/her court clerk’s spouse appeared as the attorney for one of the parties. The inquiring judge advised his/her co-judge to also disqualify him/herself from the case, but the co-judge did not do so. When the case was concluded, the inquiring judge’s court clerk contacted him/her and advised that the co-judge directed him/her to contact a party about the case and to draft a decision. The inquiring judge thereafter advised his/her court clerk to remove him/herself from the case entirely and advised his/her co-judge to keep that court clerk away from the case.

         The inquiring judge asks whether he/she is required to do anything further, having already counseled the co-judge regarding his/her position on these matters.

         A judge must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). Therefore, a judge who receives information indicating a substantial likelihood that another judge has committed a substantial violation of the Rules Governing Judicial Conduct must take appropriate action (see 22 NYCRR 100.3[D][1]).

         If a judge concludes that another judge’s conduct is an insubstantial or mere technical violation of the Rules Governing Judicial Conduct, the judge must exercise his/her discretion to determine whether to proceed further (see Opinion 05-142). Only if the judge determines that there is a "substantial likelihood" that another judge has committed a "substantial violation" of the Rules Governing Judicial Conduct is the judge obligated to proceed (22 NYCRR 100.3[D][1]; see also Opinion 05-142). The Committee has consistently advised that the judge who learns of potential misconduct must determine for him/herself whether the misconduct is a substantial violation (see Opinions 00-64 [Vol. XIX]; 98-95 [Vol. XVII]; 92-42 [Vol. IX]). It is the Committee’s view that the judge who has observed or who learns about another judge’s conduct is in the best position to determine whether if it constitutes a substantial violation of the Rules Governing Judicial Conduct (cf. Opinion 07-200).

         In evaluating another judge’s conduct to determine whether it constitutes a substantial violation of the Rules Governing Judicial Conduct, a judge should be guided by such provisions of the Rules as (1) A judge shall uphold the integrity and independence of the judiciary (see 22 NYCRR 100.1); (2) A judge shall avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2); (3) A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]); (4) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]).

         Accordingly, if the inquiring judge concludes that there has been a substantial violation of the Rules Governing Judicial Conduct, he/she is obligated to take appropriate action. If the conduct is such that it implicates a judge’s fitness to continue in office, then the judge must report the conduct to the Commission on Judicial Conduct (see e.g. Opinion 08-83). Conversely, if the inquiring judge concludes that the other judge’s conduct is an insubstantial, or mere technical violation of the Rules Governing Judicial Conduct, whether to report the conduct to a supervising or administrative judge or to a disciplinary or other authority, is left to the inquiring judge’s discretion.