Opinion 10-181

December 9, 2010

Digest:         A judge who learns that another judge arraigned a defendant on a charge of driving while intoxicated and set bail, appeared at the jail shortly thereafter, posted the bail using a check drawn on the judge’s spouse’s bank account and, after signing his/her spouse’s name on the bail documents to secure the defendant’s release, drove the defendant home should report the matter to the Commission on Judicial Conduct.

Rules:          22 NYCRR 100.2(A), 100.2(B), 100.3(D)(1); Opinions 10-14; 08-83; 08-146; 07-200 mod by Joint Opinion 08-183/08-202/09-112; 03-59; 00-64 (Vol. XIX); 98-95 (Vol. XVII); 92-42 (Vol. IX); Joint Opinion 05-105/05-108/05-109.

Opinion: 

         The inquiring judge has learned from the District Attorney that another judge who arraigned a defendant on a charge of driving while intoxicated and set bail, appeared at the jail shortly thereafter, posted the bail using a check drawn on the judge’s spouse’s bank account and, after signing his/her spouse’s name on the bail documents to secure the defendant’s release, drove the defendant home.

         The inquiring judge advises that the District Attorney is considering whether to file criminal charges against the other judge because the other judge signed his/her spouse’s name and asks whether he/she should speak to the other judge about the ethical lapses, report the matter to the other judge’s supervising judge, or report the matter to the Commission on Judicial Conduct. The judge suggests that he/she would speak to the other judge personally, at least after the District Attorney completes his/her investigation. The inquirer advises that the other judge’s conduct may be anomalous as he/she has heard “no reports of anything but proper and careful conduct on [his/her] part in the past.”

         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]).

         The Committee has consistently advised that (Opinion 08-146):

. . . 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 [sic] it constitutes a substantial violation of the Rules Governing Judicial Conduct (cf. Opinion 07-200 [mod on other grounds by Joint Opinion 08-183/08-202/09-112]).

         However, in some cases, the Committee has concluded that the alleged misconduct is so clearly likely and substantial that the judge or an appropriate administrative judge that the judge advises of the misconduct must report it to the Commission on Judicial Conduct (see e.g. Opinions 10-14 [judge must report to the Commission on Judicial Conduct the fact that another judge offered to have a police officer destroy a traffic ticket the officer issued to the inquiring judge’s relative]; 08-83 [judge who has reliable information from, inter alia, first-hand observations of the circumstances that another judge drove a car recklessly while intoxicated 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]; 03-59 [judge whose court attorney has been contacted by telephone by another judge concerning a matter involving a friend of the caller, in which the question was raised of getting the inquiring judge to recuse him/herself so that the friend’s petition could be heard by a different judge, should report the matter to the State Commission on Judicial Conduct]; Joint Opinion 05-105/05-108/05-109 [an administrative judge who receives information that a judge pressured lawyers to join the judge’s election committee should report the information to the Commission on Judicial Conduct]).

         In the Committee’s view, the conduct the present inquirer describes, if true, would at the very least appear improper and would impair public confidence in the integrity and impartiality of the judiciary. It suggests that the arraigning judge allowed a relationship to influence his/her judicial conduct or judgment (see 22 NYCRR 100.2[B]) and a failure to respect and comply with the law (see 22 NYCRR 100.2[A]). Therefore, the judge must report the other judge’s conduct to the Commission on Judicial Conduct.

         The inquiring judge need not delay making such report to await the outcome of the District Attorney’s investigation as the Rules Governing Judicial Conduct impose the obligation to report and therefore is independent of any conclusion the District Attorney might reach. Nor does the inquiring judge’s belief, in this instance, that the other judge’s conduct may be anomalous obviate the obligation to report.