Joint Opinion 17-116/17-132

December 7, 2017

Digest:         (1) A judge must determine whether he/she has information indicating a substantial likelihood that another judge or an attorney has committed a substantial violation of the applicable professional ethics rules and, if so, must take appropriate action. (2) If the judge concludes the two-prong test is met and further concludes that another judge improperly attempted to influence the outcome of a case, the appropriate action is to report the other judge to the Commission on Judicial Conduct.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(D)(1)-(2); Opinions 16-159; 16-46; 15-157; 15-138/15-144/15-166; 15-124; 15-70; 13-146; 10-175; 10-122; 10-85; 10-14; 08-198.  

Opinion:

         While presiding in drug treatment court, the inquiring judges received a letter from a part-time attorney judge, not otherwise involved in the case, supporting a defendant-participant’s renewed request for permission to travel outside the jurisdiction, after an initial denial.¹ The other judge addressed the letter directly to the presiding judge and identified him/herself as a fellow judge, providing both his/her judicial title and the location in which he/she presides. The judges ask if they have any disciplinary obligations with respect to either the letter-writing judge or the defense counsel who submitted the letter.

         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]). 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]).

         As we advised in Opinion 13-146 (citations omitted):

A judge is not required to conduct an investigation of the alleged misconduct 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. If the judge concludes that either of these two elements is missing, the judge need not take any action. 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. 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. 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.

         Although these determinations are ordinarily left to the inquiring judge’s discretion, we have sometimes offered additional guidance to the inquiring judge (see e.g. Opinions 16-46 [judge’s obligations vary depending on whether he/she concludes the other judge engaged in perjury or intentional deception]; 15-138/15-144/15-166 [judge’s obligations vary depending on whether he/she determines the “substantial likelihood” prong is met]).

         Here, too, it is entirely within these judges’ discretion in the first instance whether or not they conclude the two-prong test is satisfied with respect to the part-time attorney judge’s conduct. If they conclude the two-prong test is not met, they need not take any action; if they conclude it is met, they must take appropriate action. If, in their sole discretion, they further conclude the part-time attorney judge improperly attempted to influence the outcome of a case, then the only appropriate action is to report the other judge to the Commission on Judicial Conduct (cf. Opinions 15-124; 15-70; 10-175; 10-14). In all other circumstances, they have discretion to take some other, lesser action that they deem appropriate under the circumstances.

         Finally, a similar two-prong test applies to a judge’s disciplinary obligations with respect to possible misconduct by an attorney (see 22 NYCRR 100.3[D][2]; Opinions 16-159; 10-85). That is, these judges need not take any action whatsoever unless they conclude there is a substantial likelihood that defense counsel has committed a substantial violation of the Rules of Professional Conduct (id.). The inquiry identifies no disciplinary rule, court order, or even a bar association ethics committee opinion, prohibiting defense counsel’s conduct (cf. Opinions 15-157; 08-198). Thus we cannot say, based on the information provided, that the inquiring judges have received information indicating a substantial likelihood that defense counsel has violated the Rules of Professional Conduct, let alone that such violation (if any) is “substantial.” Accordingly, it is in their sole discretion to determine whether or not the two prongs are met (see Opinion 16-159). However, if they so conclude, they must take appropriate action, which is likewise confined to their discretion (id.).²

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¹ The defendant-participant was subject to several conditions and restrictions, including a prohibition on travel outside the jurisdiction without the court’s permission.

² As a reminder, a judge who decides to report an attorney is disqualified from presiding in matters in which the attorney appears during the pendency of the disciplinary proceeding and for two years after it finally concludes, and remittal is unavailable (see Opinion 10-122).