Opinion 10-50

March 10 - 11, 2010

Digest:         A court attorney referee is not obligated by the Rules Governing Judicial Conduct to report to law enforcement conduct by a defendant in a matrimonial matter that was described by the plaintiff in the matter during a hearing in which the court attorney referee presided, nor is he/she precluded from doing so.

Rules:          Domestic Relations Law §235(1); 22 NYCRR 100.2; 100.2(A); 100.3(D)(1),(2); 100.6(A); 101.1; Opinion 08-91; 08-56; 08-31; 08-30.

Opinion:

         A court attorney referee (referee) who presided over a hearing in a matrimonial action has formed a suspicion concerning the defendant who failed to appear for the hearing. The referee advises that, according to the plaintiff, the defendant engaged in certain conduct that, while in and of itself is not criminal, is similar to actions taken by others in the past who thereafter committed an act of terrorism. The referee asks whether he/she may report the defendant’s conduct as the plaintiff described it to a law enforcement agency. The referee also asks whether he/she may provide the law enforcement agency with copies of pleadings and/or exhibits or if doing so is prohibited by Domestic Relations Law §235(1).

         Referees are subject to the Rules Governing Judicial Conduct in the performance of their judicial functions (see 22 NYCRR 100.6[A]; Opinion 08-91). Therefore, a referee must avoid impropriety and the appearance of impropriety in all his/her actions (see 22 NYCRR 100.2) and 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]). While a referee who receives information indicating a substantial likelihood that a judge or an attorney has committed a substantial violation of the Rules Governing Judicial Conduct or the Rules of Professional Conduct, respectively, must take appropriate action (see 22 NYCRR 100.3[D][1], [2]), nothing in the Rules Governing Judicial Conduct requires a referee to report misconduct by or criminal activities of a litigant or other person. Nor do the Rules address the situation the inquiring judge describes, i.e., conduct that is not in and of itself criminal, but is similar to conduct engaged in by others in the past who subsequently committed an act of terrorism.

         Therefore, it is the Committee’s view that the inquiring Referee is not obligated to report the defendant’s activities as the plaintiff described them. At the same time, however, he/she is not precluded from reporting what he/she has heard to the appropriate authority, as that decision lies within his/her discretion.

         Whether Domestic Relations Law §235(1) precludes the Referee from disclosing pleadings and documents related to the matrimonial matter is a question of law that is beyond the Committee’s jurisdiction (see 22 NYCRR 101.1; Opinions 08-56; 08-31; 08-30).