Opinion 13-146
October 24, 2013
Digest: A judge who learns that his/her co-judge has provided professional assistance to one side in connection with an ongoing matter that originated in the judges’ court, and over which the co-judge personally presided at an earlier stage, must report the co-judge to the Commission on Judicial Conduct.
Rules: Judiciary Law §§ 16; 471; 22 NYCRR 100.2(A); 100.3(B)(6); 100.3(D)(1); Opinions 13-71; 13-69; 12-173; 12-166; 10-175; 08-83; 07-82; Joint Opinion 05-105/05-108/05-109; 03-105; 03-59; 01-05 (Vol. XIX); 99-34 (Vol. XVII); 98-82 (Vol. XVII); 90-13 (Vol. V); 88-108 (Vol. II); 88-50 (Vol. II); Joint Opinion 88-17(a)/88-25 (Vol. I).
Opinion:
The inquiring judge states that he/she presides in the same court with a part-time co-judge who is permitted to practice law (the “co-judge”). Earlier this year, the co-judge conducted an arraignment in a criminal case. Information included in the inquiry suggests that, following a routine post-arraignment transfer of the criminal case to the inquiring judge for further proceedings, the co-judge provided professional assistance to an attorney in the same case.1 After these events came to light, the inquiring judge took steps that resulted in assignment of the case to a new judge. Under these circumstances, the inquiring judge asks whether he/she is required to take any further action.
A judge must always act to promote public confidence in the judiciary’s integrity and impartiality (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” (22 NYCRR 100.3[D][1]).
A judge is not required to conduct an investigation of alleged misconduct (see Opinion 07-82) and, therefore, may discharge his/her disciplinary responsibilities based on facts already known to the judge without further inquiry. In general, the Committee has advised that the judge who has first-hand knowledge of all the facts and persons involved in a particular situation is in the best position to determine whether there is a “substantial likelihood” that another judge has committed a “substantial violation” of the Rules (see Opinion 12-166). If the judge concludes that either of these two elements is missing, the judge need not take any action (see id.). If a judge concludes that there is a substantial likelihood that another judge has engaged in a “substantial violation” of the Rules, the action the judge must take will depend on the nature of the misconduct (see Opinions 13-71; 13-69). For example, if the misconduct is so serious that it calls into question a judge’s fitness to continue in office, the judge must report the conduct to the appropriate disciplinary authority (see Opinions 13-71; 13-69). By contrast, if the misconduct, although substantial, does not reach that level of seriousness, the judge has the discretion to take some other, less severe action than reporting the conduct to a disciplinary authority (see Opinions 13-71; 13-69).
However, there have been instances “where conduct described in an inquiry to this Committee, if true, clearly called into question another judge’s fitness to continue in office and, therefore, at the very least, warranted an investigation by the Commission [on Judicial Conduct]” (Opinion 10-175 [a judge who receives a letter from another judge in support of an application that is pending in the receiving judge’s court, under circumstances that indicate to the receiving judge that the letter was not solicited by an appropriate agency, must report the letter writer to the Commission on Judicial Conduct]; see also e.g. Opinions 08-83 [judge drove a car recklessly while intoxicated, expressed an expectation of special consideration due to his/her current and past official status, and presided more than once while intoxicated]; 03-59 [judge called inquirer’s court attorney asking for help in getting inquirer to disqualify him/herself so that a friend’s petition could be heard by a different judge]).
The Committee believes that the conduct described here, i.e., a judge undertaking legal work in connection with a matter that originated in the judge’s court, and over which the judge previously presided, is clearly prohibited under the Rules and prior opinions. In Opinion 12-173, the Committee stated:
a part-time judge and his/her associates may not represent a client in any case “originating” in the part-time judge’s court, even before a full-time judge (see Judiciary Law §§ 16; 471; Opinions 03-105; 01-05 [Vol. XIX]; 99-34 [Vol. XVII]; 98-82 [Vol. XVII]; 88-50 [Vol. II]; Joint Opinion 88-17[a] and 88-25 [Vol. I]). The Committee has explained that the word “originating,” in this context, “includes any case upon which some court action has been taken, such as filing a case in the court, or the issuance of an appearance ticket” (see Opinion 88-50 [Vol. II]; see also Opinion 03-105 [“Notwithstanding the absence of judicial action other than disqualification and forwarding the matter to County Court, the proceeding did originate in the judge’s court.”]). No further judicial action is required for the prohibition to be invoked, and it is irrelevant whether the judge had any involvement in the matter while it was pending in his/her court (see Opinion 88-50 [Vol. II]; see also Opinion 03-105).
As the Committee has previously noted, it “cannot judge the credibility of” allegations of misconduct “and is not empowered to do so” (Joint Opinion 05-105/05-108/05-109). Nonetheless, because the alleged misconduct, if it occurred as described, would constitute a substantial violation of the Rules, the inquiring judge must take appropriate action (see 22 NYCRR 100.3[D][1]).
In the Committee’s view, the alleged misconduct, if true, is likely to undermine public confidence in the judiciary because it suggests, at the very least, an attempt by the co-judge to obtain fees for his/her law firm in connection with a case that originated in his/her court (see Opinion 88-108 [Vol. II] [“A judge may not receive, directly or indirectly, any part of a fee for a matter adjudicated in his court or for any matter that originated in his court.”]). Moreover, it also raises concerns about the co-judge’s impartiality, both to the extent that it suggests the co-judge has an economic interest in the case and because it suggests the co-judge has provided assistance to one side of an ongoing matter in which the co-judge had personally presided at an earlier stage (see 22 NYCRR 100.2[A]; cf. 22 NYCRR 100.3[B][6] [“judge shall not initiate, permit, or consider ex parte communications”]). Such conduct calls into question the co-judge’s fitness to continue in judicial office, thus imposing upon the inquiring judge an affirmative duty to report the co-judge to the Commission on Judicial Conduct so that the issue can be further investigated (see e.g. Opinions 10-175; 03-59; 90-13 [Vol. V]).
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1 The identity of the co-judge’s client is unclear from the inquiry, but it appears that assistance was provided to an attorney on one side of the criminal case, in connection with an outstanding issue in the criminal case.