Opinion 09-113

September 16, 2010

Digest:         A part-time lawyer judge should report another part-time lawyer judge to the Commission on Judicial Conduct because, on multiple occasions, the other part-time lawyer judge has committed a substantial violation of the Rules Governing Judicial Conduct by practicing law in the part-time lawyer judge’s court.

Rules:          22 NYCRR 100.1;100.2(A);100.3(D)(1); 100.6(B)(2); Opinions 08-146; 08-83; 00-64 (Vol. XIX); 98-95 (Vol. XVII); 92-42(Vol. IX).

Opinion:

         A part-time lawyer judge asks whether he/she has an ethical responsibility to report what the judge believes to be misconduct on the part of another part-time lawyer judge (practitioner judge). According to the inquiring judge, a practitioner judge’s spouse - who also is a practicing attorney - appeared in the inquiring judge’s court and presented the practitioner judge’s business card to the inquiring judge with the spouse’s name added above the practitioner judge’s name. After several adjournments, the inquiring judge scheduled the case for trial. On the day before the scheduled trial date, the practitioner judge contacted the court clerk on behalf of his/her lawyer/spouse to request an adjournment. According to the inquiring judge, when the court clerk advised the practitioner judge that the inquiring judge would not grant an adjournment, the practitioner judge became very upset and threatened to report the inquiring judge to the Commission on Judicial Conduct. The inquiring judge further advises that on the scheduled trial date, the practitioner judge faxed a letter to the inquiring judge advising of the lawyer/spouse’s other scheduled court appearances that would prevent the lawyer/spouse’s appearance that day.

         According to the inquiring judge, the court files include evidence that the practitioner judge requested adjournments or made other motions in several other cases pending in the inquiring judge’s court.

         A judge must uphold the integrity and independence of the judiciary (see 22 NYCRR 100.1) and 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]).

         In previous opinions, the Committee has consistently advised that a judge who learns of potential misconduct must determine for him/herself whether the misconduct is a substantial violation of the Rules Governing Judicial Conduct (see Opinions 00-64 [Vol. XIX]; 98-95 [Vol. XVII]; 92-42 [Vol. IX]). In the Committee’s view the judge who has observed or has learned about another judge’s conduct is in the best position to make that determination (see Opinion 08-146).

         However, on occasion, the Committee has advised that certain conduct clearly constituted a substantial violation of the Rules Governing Judicial Conduct and that knowledge of such conduct imposed upon the inquiring judge an affirmative obligation to take appropriate action. Moreover, and beyond that, when the misconduct reached a level that was so egregious that it implicated a judge’s fitness to continue in judicial office, the Committee advised the inquiring judge that the only appropriate action was to report the misconduct to the Commission on Judicial Conduct (see e.g. Opinions 08-83 [judge, who has reliable information from, inter alia, first-hand observations of circumstances that another judge drove a car recklessly while intoxicated, used his/her judicial title to try to avoid being arrested and also has substantial information that the other judge presided more than once while intoxicated, must report the other judge to the Commission on Judicial Conduct and to the appropriate administrative judge, because the other judge’s actions call into question his/her fitness to continue in judicial office]; 00-64 [judge who has direct, personal knowledge that another judge engaged in impermissible political activity should report such facts to the State Commission on Judicial Conduct]).

         A part-time lawyer judge is prohibited from practicing law in any other court in the county in which his/her court is located, before another judge who is permitted to practice law (see 22 NYCRR 100.6[B][2]). The judge practitioner in the present inquiry not only permitted his/her spouse to use his/her business card, but wrote to the inquiring judge’s court on several occasions for a variety of reasons, including to request adjournments, to authorize his/her spouse’s appearance on a case, to pay a fine from his/her escrow account, to provide evidence that a defendant had paid restitution, and to enter a plea on a defendant’s behalf. Therefore, it is the Committee’s view that the practitioner judge’s conduct, as the inquiring judge describes it, constitutes a substantial violation of the Rules Governing Judicial Conduct, and that based on the nature, frequency, and severity of such conduct, the inquiring judge must report the practitioner judge to the Commission on Judicial Conduct.

         While the Committee believes that the circumstances in the present inquiry warrant this drastic step, it is not the Committee’s view that a judge must report a lawyer judge every time the lawyer judge contacts another court in the same county that is presided over by a lawyer judge, as the Committee recognizes that there are circumstances when such contact may be benign or innocent or in exigent circumstances; and thus should not cause the lawyer judge to be subjected to an investigation by the Commission on Judicial Conduct. In such instances, especially if they are isolated, a less severe measure would be sufficient (e.g, informing the lawyer’s employer or partner or his/her supervising judge, or counseling and cautioning the lawyer judge not to repeat the conduct).

         The inquiring judge also asks whether he/she must report the practitioner judge, who serves as an indigent defense provider, because the practitioner judge permits other attorneys who also provide indigent defense services on behalf of the same office as does the practitioner judge to appear before him/her in the court where he/she presides. The Committee declines to answer this question as the information provided about the indigent defense services office is not sufficient to do so.

         Finally, the inquiring judge also asks whether he/she must report him/herself to the Commission because of a statement he/she made in court. As the Rules Governing Judicial Conduct require a judge to act only with respect to conduct by another judge, the inquiring judge is not required to report his/her own conduct (see 22 NYCRR 100.3[D][1]).