Opinion 13-55

July 29, 2013

Dear Judge:

         This responds to your inquiry (13-55) asking whether you must report an Administrative Law Judge either to the Commission on Judicial Conduct or to the department that employs him/her.

         You advise that an attorney submitted a letter on behalf of a defendant in your court who is charged with violating a parking ordinance. While the attorney’s letter was printed on letterhead from his/her law office, the attorney included his/her title of “Administrative Law Judge” below his/her signature.

         A judge must always act to promote public confidence in the judiciary’s integrity and impartiality. A judge who has substantial knowledge that a judge or an attorney has committed a substantial violation of the Rules Governing Judicial Conduct or the Rules of Professional Conduct must take appropriate action (see 22 NYCRR 100.3[D][1], [2]). However, a judge is not obligated to report a non-judge/non-lawyer’s conduct to any authority, but has the discretion to do so (see Opinions 10-50; 07-144).

         The Commission on Judicial Conduct is responsible for receiving and resolving complaints with respect to the conduct, qualifications, fitness to perform or performance of official duties of a judge (see NY Const, art 2-A, §44[1]). For purposes of the Commission’s responsibilities, “judge” means a judge or justice of any court of the Unified Court System (see NY Const, art 2-A, §40[2]). Therefore, as an administrative law judge is not a judge of the Unified Court System, the Commission is not responsible for disciplining administrative law judges. Consequently, you are not obligated to report an administrative law judge to the Commission.

         The Rules Governing Judicial Conduct are not applicable to administrative law judges unless adopted by the rules of the employing agency (see 22 NYCRR 100.6[C]). Therefore, whether and to what extent the Rules Governing Judicial Conduct apply to the attorney in question can only be determined by contacting his/her employer. It is the Committee’s view that you may but are not obligated to do so.

         I have enclosed Opinions 10-50 and 07-144 for your convenience.

Very truly yours,

George D. Marlow, Assoc. Justice

Appellate Division, First Dept. (Ret.)

Committee Chair

Encls.