Opinion 19-64

July 31, 2019

Dear :

         This responds to your inquiry (19-64) asking if you are obliged to disclose a colleague’s written communication describing in detail the colleague’s ongoing proceeding before the Commission on Judicial Conduct, and which included some admissions about his/her conduct. You advised you do not have any independent personal knowledge of the matters discussed in the writing.

         We previously advised that a judge who “receives information indicating a substantial likelihood” that another judge “has committed a substantial violation” of the applicable Rules Governing Judicial Conduct must take “appropriate action” (see 22 NYCRR 100.3[D][1]) . Ordinarily, there is wide latitude for a Judge to evaluate whether the two prongs are met and, if so, to determine what is “appropriate action” (see Opinion 18-74).

         We previously advised that if, based upon credible evidence, a judge determined that the subject judge has “self-reported” to the Commission on Judicial Conduct, or if the matter is already under investigation by the Commission on Judicial Conduct, then there is no need to take any further action (see Opinions 18-137; and 14-162[A]). Here, your inquiry suggests the other judge’s discussion and admissions relate solely to charges already before the Commission. If you believe that is accurate, then you need not take any further action, regardless of your conclusions about the two-prong test and the seriousness of the alleged misconduct.

         Enclosed for your convenience, are Opinions 18-74; 18-137;14-162(A), addressing this issue.

                                                 Very truly yours,

                                                 George D. Marlow, Assoc Justice                                                                     Appellate Div., First Dept. (Ret)

                                                 Committee Co-Chair

                                                 Hon. Margaret T. Walsh

                                                 Supreme Court Justice

                                                 Committee Co-Chair

Encs.