Opinion 16-25

March 16, 2016

Digest:         A judge is not required to - but may in his/her discretion - notify a police officer’s commander of the officer’s non-compliance with a legal mandate.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(B)(6); 100.3(D)(1)-(2); Opinions 15-231; 14-122; 09-171; 09-142; 08-155; 08-99; 06-13; 05-84; 03-110; 88-85/88-103.

Opinion:

            A judge who dismissed a traffic ticket, based on a police officer’s failure to comply with a subpoena, asks whether he/she may notify the commanding officer of the non-compliance.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge who “receives information indicating a substantial likelihood” that a lawyer or another judge “has committed a substantial violation” of the applicable professional ethics rules must take “appropriate action” (22 NYCRR 100.3[D][1]-[2]).

         However, these Rules describing a judge’s disciplinary obligations refer only to “a lawyer” (22 NYCRR 100.3[D][2]) or “another judge” (22 NYCRR 100.3[D][1]), and thus the Committee has repeatedly stated that a judge need not report criminal or other misconduct by persons who are neither lawyers nor judges, even if the misconduct occurs in a case before the judge (see e.g. Opinions 14-122; 09-171; 08-155; 06-13; 05-84; 03-110; 88-85/88-103). A judge may nonetheless choose to report such criminal or other misconduct, in his/her sole discretion (see generally id.).¹

         Because the police officer here is not an attorney or judge, the inquiring judge likewise has no obligation to report the officer’s non-compliance with a legal mandate. The judge may nonetheless, in his/her discretion, notify the police officer’s commander of the non-compliance.²

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         ¹In one unique and readily distinguishable circumstance, the Committee advised a judge who discovered “evidence that certain court personnel may have engaged in misconduct that suggests the possibility of corruption within the court itself” to report the facts to his/her administrative judge (Opinion 08-99). Clearly, a court clerk’s attempts to fix a relative’s traffic ticket and destroy court records could potentially “undermine public confidence in the integrity and impartiality of the judicial system” if not addressed by court administrators (id.).

         ²Although not strictly relevant to the present inquiry, since this judge already dismissed the case, the Committee notes that a judge generally may, in his/her discretion, wait until a proceeding ends to take action with respect to apparent misconduct related to the proceeding (see Opinion 15-231). Indeed, waiting may allow the judge to obtain a more complete picture of the misconduct, minimize the risk of impermissible ex parte communications concerning a pending or impending proceeding (see 22 NYCRR 100.3[B][6]), and, where applicable, reduce the disruptive effect of mandatory disqualification (see e.g. Opinion 09-142 [judge who reports attorney to the grievance committee is disqualified, without the possibility of remittal, in all matters where the attorney appears while the disciplinary matter is pending and for two years thereafter]).