Opinion 19-79

June 20, 2019

Digest:         A supervising judge who received a request from the Commission on Judicial Conduct for counseling memos, corrective action plans, and personal notes related to his/her supervision of certain judges currently under disciplinary investigation is not ethically required to provide such materials voluntarily.

Rules:          Judiciary Law § 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(C)(1); 100.3(D)(1); 100.3(D)(3); Opinions 18-176/18-176(A)/18-177; 18-138; 17-161; 07-153; 98-118; 95-148.

Opinion:

         A supervising judge has received a request from the Commission on Judicial Conduct for copies of his/her supervisory notes, counseling memos and corrective action plans regarding certain judges the Commission is investigating. The inquirer states that such materials reflect private discussions with his/her supervisees and often contain sensitive personal information regarding another judge’s physical, mental or emotional health, treatment options, treatment methods and other personal issues. The judge asks if he/she must comply with the Commission’s request.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), including “[a]cts of a judge in the discharge of disciplinary responsibilities” (22 NYCRR 100.3[D][3]). A judge “should cooperate with other judges and court officials in the administration of court business” (22 NYCRR 100.3[C][1]).

         Although a judge may not testify voluntarily as a character witness (see 22 NYCRR 100.2[C]), we have said a “judge may voluntarily provide an affidavit and/or testify as a fact witness in a proceeding when he/she has personal knowledge of facts in dispute” (Opinion 07-153; see also Opinions 18-138 [judge with personal knowledge of relevant facts may voluntarily testify as a fact witness in an attorney disciplinary proceeding]; 98-118 [judge may provide an affidavit and testify as a fact witness regarding an accident that the judge witnessed]; 95-148 [judge may furnish someone who has taken “legal action” with a letter containing an unsworn narrative of the events surrounding an argument witnessed by the judge]).

         However, a judge is also ethically permitted to decline to testify voluntarily, even when he/she has personal knowledge of relevant facts (see e.g. Opinions 18-176/18-176[A]/18-177 [judge who is a potential fact witness in a case may but is not required to, volunteer objective factual information concerning his/her personal observations to counsel for either side]; 17-161 [judge may decline to meet with those seeking to vacate a conviction the judge had previously prosecuted, even though the judge already met with the prosecutorial office about it]; 07-153 [judge may, but is not required to, provide factual affidavits requested by a former client]).

         Further, although a judge must cooperate with “other judges and court officials in the administration of court business” (22 NYCRR 100.3[C][1]), we do not believe this provision requires a supervising judge to comply voluntarily with the Commission’s request for copies of counseling memos, corrective action plans, and personal notes related to his/her supervision of other judges.¹

         Here, the judge has not been asked to testify, but has been asked to provide copies of documents which doubtless memorialize a wide variety of facts as he/she understood them at the time of counseling the other judges. For example, the documents may reveal what he/she learned about the other judges’ conduct and motivations, their receptivity to counseling or proposed remedial steps, and other issues. Accordingly, we conclude the supervising judge may ethically provide the requested factual material voluntarily, but has no ethical obligation to do so.

         We do not address any legal questions, including whether there is any legal obstacle to disclosing the requested materials (see generally Judiciary Law § 212[2][l]).

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¹ While the judge does not ask us to address his/her obligations, if any, under Section 100.3(D)(1), we note for completeness that this provision likewise does not require him/her to comply with the Commission’s request. That is, we do not believe that “appropriate action” by a supervising judge necessarily involves disclosure of his/her supervisory notes, counseling memos, or corrective action plans to the Commission. Nor do we believe that receiving a request for information from the Commission necessarily constitutes “information indicating a substantial likelihood that another judge has committed a substantial violation” of the Rules Governing Judicial Conduct (id.).