Opinion 18-66

May 10, 2018

Digest:         Under these circumstances, the inquiring judge has full discretion to take, or not take, any action in response to a co-judge’s conduct.

Rules:          22 NYCRR 100.2(A); 100.3(D)(1); Opinion 18-10.

Opinion:

         A part-time judge has learned from multiple sources, including his/her co-judge, about an interaction between the co-judge and certain court personnel. The co-judge, apparently misinterpreting an ethical rule, engaged in a conversation about a pending case with several court personnel that left them with the impression that they were being asked to participate in deciding the case. The co-judge discontinued the discussion when one court employee expressed his/her discomfort and promptly self-reported what occurred to colleagues with supervisory responsibilities. The inquiring judge believes there was an innocent miscommunication, and there was no actual impropriety or improper intent.

         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 18-10 (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 the level of seriousness, the judge has the discretion to take some other, less severe action than reporting the conduct to a disciplinary authority.

         Here, the inquiring judge has heard multiple reports from individuals with first-hand knowledge of the conversation at issue, including the alleged wrongdoer. The issue is whether the information he/she has received satisfies the initial threshold: is there a substantial likelihood that the co-judge has committed a substantial violation of the Rules Governing Judicial Conduct. As described in the inquiry, it does not. The inquiring judge, who knows all the individuals involved, has credited the explanations given and concludes the co-judge’s missteps were inadvertent and that he/she was not attempting to delegate his/her judicial decision-making functions.

         Thus, on these facts, we conclude the judge need not take any action under Section 100.3(D)(1). It remains entirely within his/her discretion whether to take, or not take, any further steps concerning the colleague’s conduct. Moreover, should the judge decide to take any steps, those steps are entirely in his/her discretion. They could, for example, include counseling the co-judge and/or reporting the conduct to an administrative judge.