Opinion 17-177

December 7, 2017

Digest:         Where a judge has reliable, first-hand knowledge that another judge attempted to use his/her judicial status to influence the bail decision in a family member’s criminal case, but the other judge never revealed his/her name: (1) if the judge knows the other judge’s identity, he/she must report him/her to the Commission on Judicial Conduct; but (2) if the judge does not know the other judge’s identity, he/she has no obligation to investigate or take any further action.

Rules:          22 NYCRR 100.2(A); 100.3(D)(1); Opinions 17-147; 15-124; 15-119; 15-70; 13-146; 10-175; 10-36; 10-14.

Opinion:

         The inquiring judge was presiding in an arraignment when an individual repeatedly identified him/herself both as the defendant’s relative and as a sitting judge of a large multi-judge court¹ and asked the inquiring judge to reduce the amount of bail. After confirming that the other judge was not defendant’s attorney, the court informed the other judge his/her conduct was improper. The other judge responded “I’m just here as a family member” and then sat down as directed. Although the court asked, “Who are you?” the other judge never provided his/her name, and is identified solely as “DEFENDANT’S [RELATIVE]” in the transcript. The inquiring judge asks if he/she must report the other judge to the Commission on Judicial Conduct.

         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 we have previously advised (Opinion 13-146 [citations omitted]):

A judge is not required to conduct an investigation of 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.

         It is clear from the inquiry and the accompanying transcript that the inquirer believes he/she has reliable, first-hand knowledge that the other judge was attempting to use his/her judicial status to influence the bail decision in a family member’s criminal case. Such conduct, if proved, clearly calls into question the other judge’s fitness to continue in office and therefore should be reported (see e.g. Opinions 15-124; 15-70; 10-175; 10-14). However, the judge has no obligation whatsoever to investigate the other judge’s identity, whether or not it would be difficult to do so (see e.g. Opinions 10-36 [judge who learns of possible criminal activities by an attorney whose identity is unknown to the judge has no obligation to determine the attorney’s identity]; 17-147 [judge who is contacted by another judge concerning an unspecified case before him/her, but who never learns any information sufficient to identify the case, need not take any action]; 15-119 [judge who learns a town justice presided over an arraignment and then requested the matter be transferred due to a purported conflict, but lacks relevant details of the purported conflict, need not take any action]).

         We therefore conclude that if the inquiring judge knows the other judge’s identity, he/she must report him/her to the Commission on Judicial Conduct (see Opinion 15-124). Conversely, if he/she does not know the other judge’s identity, he/she need not take any action whatsoever (see Opinions 10-36; 17-147).

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¹ The specified court is in a metropolitan area, with numerous judges.