Opinion 17-147

October 19, 2017

Digest:         A judge who receives a phone call from another judge concerning an unspecified case before him/her, but who never learns any information sufficient to identify the case, has no obligation to take any action concerning the other judge’s conduct. The judge has full discretion to take, or not take, any steps concerning the other judge’s conduct as he/she deems appropriate.

Rules:          22 NYCRR 100.2(A); 100.3(D)(1); Opinions 15-119; 13-146; Matter of Edwards, 67 NY2d 153 (1986).

Opinion:

         The inquiring judge received a phone call from another judge, who identified him/herself by name and title and asked several times about the procedure to resolve a traffic ticket for a “friend’s daughter.” Each time, the inquiring judge replied that the defendant would need to negotiate with the prosecutor. The call ended without revelation of the defendant’s name or any other information sufficient to identify the case. The judge asks if he/she has any disciplinary obligations arising from this call.

     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]).

     As the Committee has previously advised (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.

However, there have been instances where the facts described in an inquiry to this Committee make clear the inquiring judge lacks sufficient information to meet the initial “substantial likelihood” threshold (see e.g. Opinion 15-119 [discussing prior opinions]).

On the facts presented, we believe that the inquiring judge acted with great propriety and restraint in the face of an unsettling and ambiguous phone call from another judge. Indeed, the Court of Appeals has previously censured a judge for “identifying himself as a Judge and inquiring about the procedures to be followed in resolving his son's case” (Matter of Edwards, 67 NY2d 153, 154 [1986] [noting that “[t]he absence of a specific request for favorable treatment or special consideration is irrelevant”]).

Here, however, the other judge never identified the case he/she was calling about, leaving the inquiring judge uncertain about the other judge’s intentions.

As the inquiring judge is unsure why the other judge called, has no idea which case the other judge was referencing, and has no duty to investigate the matter, we conclude that he/she lacks sufficient information to meet the initial “substantial likelihood” threshold. Thus, the judge need not take any action under Section 100.3(D)(1).

         Accordingly, it is entirely within the inquiring judge’s discretion whether to take, or not take, any further steps concerning the other judge’s conduct. If the judge believes the matter should be investigated, he/she may, of course, report the phone call to an administrative judge and/or the Commission on Judicial Conduct.