Opinion 11-116

October 27, 2011

Digest:         A judge who is aware of facts concerning an individual’s performance as a prosecutor may voluntarily disclose those facts to the legislative body which appoints the prosecutor if the judge concludes the prosecutor’s conduct constitutes a substantial violation of the Rules of Professional Conduct or otherwise affects the administration of justice. The judge may not, however, volunteer a recommendation as to whom the legislative body should appoint or how it should exercise its appointment power.

Rules:          22 NYCRR 100.2(A); 100.2(C); 100.3(D)(2); 100.4(C)(1); 100.6(B)(1); Part 1200; Opinions 10-85; 10-07; 06-32; 02-26.

Opinion: 

         Two town justices ask whether they may recommend to the town board that it not re-appoint the town prosecutor. In the alternative, they ask whether they may “present facts to the [t]own [b]oard regarding the poor performance of the [t]own [p]rosecutor and let them decide without a recommendation.” Among other concerns, the inquiring judges believe the prosecutor “may have used” his/her prosecutorial status “to escape being charged with an offense”; lacks basic competence as a prosecutor; “refuses” to take matters to trial; leaves the courtroom without permission, causing cases to be dismissed or unnecessarily held over; intimidates defendants into accepting pleas; is unprofessional and “lacks courtroom decorum”; complains about the workload and pay of the office; and “is not a pleasure to deal with.”

         A judge must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). For example, a judge must not lend the prestige of judicial office to advance the private interests of the judge or others, and must not testify voluntarily as a character witness (see 22 NYCRR 100.2[C]). Also, if a judge receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Rules of Professional Conduct (see 22 NYCRR Part 1200), the judge must take appropriate action (see 22 NYCRR 100.3[D][2]). And, a judge may appear at a public hearing before an executive or legislative body or official on “matters concerning the law, the legal system or the administration of justice” (22 NYCRR 100.4[C][1]).¹

         Under the facts presented, the inquiring judges should consider whether there is a substantial likelihood that the prosecutor committed a substantial violation of the Rules of Professional Conduct because they are ordinarily in the best position to evaluate and assess relevant, known circumstances (see Opinion 10-85). If the judges determine this two-part standard is met, the judges must take appropriate action, and each retains full discretion to determine what constitutes “appropriate action” under the circumstances (see id.).² The Committee has advised that appropriate measures may include, but are not limited to, counseling and/or warning a lawyer, reporting a lawyer to his/her employer, and sanctioning a lawyer (see id.). The Committee sees no reason why the inquiring judges could not, if they conclude that the Section 100.3(D)(2) standard is met, exercise their discretion to report facts known to them concerning the prosecutor’s conduct to the town board.

         Even if the inquiring judges conclude that the conduct they have observed does not trigger their disciplinary responsibilities under Section 100.3(D)(2), the Committee notes that a judge may address a legislative body on matters concerning the law, the legal system or the administration of justice (see 22 NYCRR 100.4[C][1]; cf. Opinion 06-32 [discussing the greater latitude allowed a part-time judge]). It appears that some of the inquiring judges’ observations about the prosecutor’s conduct, if accurate, could impact the administration of justice and thus could be reported to the town board under Section 100.4(C)(1).

         In voluntarily communicating their views to the town board in the context of the prosecutor’s bid for reappointment, however, the judges must be mindful of the need to avoid any appearance that they are lending the prestige of judicial office to advance any private interests or testifying voluntarily as character witnesses (see 22 NYCRR 100.2[C]). Thus, just as a judge who provides a reference for a job, law school, or college applicant, or an applicant for an appointive position, should not recommend that the recipient hire, accept or appoint the applicant (see Opinion 10-07), the inquiring judges should similarly limit their comments to their knowledge of the prosecutor’s professional performance or other qualities and abilities that are relevant to the position (see id.; see also Opinion 02-26 [“Under no circumstances should the judge recommend that the appointment be made.”]).

         In sum, if the judges conclude that the prosecutor’s conduct constitutes a substantial violation of the Rules of Professional Conduct or otherwise affects the administration of justice, they may disclose such facts concerning the prosecutor’s performance to the town board. They may not, however, volunteer any recommendation about how the town board should exercise its appointment power.

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     ¹ Part-time judges, unlike full-time judges, may also appear at such public hearings on matters that do not concern the law, the legal system or the administration of justice (see 22 NYCRR 100.4[C][1]; 100.6[B][1]).

     ² If the inquiring judges determine that the prosecutor’s conduct seriously calls into question the attorney’s fitness as a lawyer, they must report it to a disciplinary authority (see Opinion 10-85), although they may, in their discretion, take other steps as well.