Opinion 18-10

January 24, 2018

Digest:         A judge who has concerns a new judge may not fully understand his/her judicial duties, but lacks reliable information suggesting possible misconduct by the other judge, has full discretion to take, or not take, any action in response to such conduct.

Rules:          22 NYCRR 100.2(A); 100.3(D)(1); Opinions 15-119; 13-146.

Opinion:

         The inquiring judge is concerned about a new judicial colleague’s grasp of basic court procedures and the judiciary’s proper role and function. Thus, the judge decided to give corrective guidance and instruction on topics such as a judge’s proper role in plea bargains, the necessity for off-hour arraignments, how to handle bail during an arraignment, and the need for vigilance in recognizing conflicts. The judge also had to address the colleague’s mistaken beliefs that judges have a duty “to raise money for” the local municipality and may meet with law enforcement agents to discuss “the types of tickets [they] wanted written and the volume.”

         However, two recent incidents prompted the judge to ask for guidance. First, the colleague asked about the status of a particular case. On learning that the inquirer “had just signed a Bench Warrant” for non-payment of a fine, the colleague exited the building “and a few hours later the defendant’s [relative] arrives and paid the fine in full and the warrant was re-called.” Second, a bail agency’s representative arrived at the court with a bag of business cards and marketing materials for the agency and said he/she wanted to leave the bag for the new judge “because [he/she] might be able to help.”¹ On these facts, the inquiring judge asks about his/her ethics responsibilities.

         A judge must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge who receives information indicating a substantial likelihood 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 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]).

         Here, too, on the facts presented, the judge clearly does not know if the colleague acted improperly. On the outstanding bench warrant matter, the judge does not have any knowledge whatsoever as to what the colleague said or did during his/her absence from the court. Indeed, on these facts, the judge’s concern that the colleague may have spoken to the defendant or his/her family about the case appears as pure speculation. Similarly, nothing here suggests the colleague requested the bail agency’s marketing materials or planned to distribute them.

         Thus, based on the facts presented to the Committee, we conclude at this time this judge lacks sufficient information to meet the initial “substantial likelihood” threshold and need not take any action under Section 100.3(D)(1).

          Accordingly, it remains entirely within the inquiring judge’s discretion whether to take, or not take, any further steps concerning the colleague’s conduct. One possibility, if the judge believes the colleague may need more training or guidance, or that these incidents should be investigated, would be to report the conduct to an administrative judge.

____________________________

¹ The inquiring judge had previously advised the colleague that, if a defendant asks about the availability of a bail bonds agency, he/she should not recommend a specific agency, but instead direct the defendant to a telephone directory.