Opinion 20-15

January 30, 2020

Digest:         On these facts, where a judge discovered a clerical court employee’s apparent misconduct after the affected case had already been adjudicated and the judge has already reported all the facts he/she learned to appropriate court administrators, the judge need not take any further action.

Rules:          Judiciary Law § 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.3(D)(1)-(2); Opinions 15-189; 13-54; 10-114; 08-99.

Opinion:

         The inquiring judge issued a default judgment in a particular matter after a litigant repeatedly failed to appear. The judge subsequently learned that the litigant had come to the courthouse the very day of and before the appearance at which the default judgment was entered. He/she checked in with a clerical court employee. The clerk erroneously advised the litigant he/she had not been properly served and need not appear before the judge. Based on the clerk’s representation, the litigant departed. As the clerk is not the judge’s personal appointee, the judge reported the apparent misconduct “up the chain of command to court administrators.”¹ The judge asks if he/she need take any further action concerning the clerk and/or the affected case.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, if a judge receives information indicating a “substantial likelihood” that a lawyer or another judge has committed a “substantial violation” of the applicable rules of professional ethics, the judge must take “appropriate action” (22 NYCRR 100.3[D][1]-[2]).

         On its face, “Section 100.3(D) imposes no disciplinary duties on a judge who learns of inappropriate or illegal conduct by an individual who is not a lawyer or a judge” (Opinion 15-189). We have, however, noted that “misconduct by court personnel can, under some circumstances, undermine public confidence in the integrity and impartiality of the judicial system itself” (Opinion 15-189, quoting Opinion 08-99). Where this standard is met, the judge may be required to report facts he/she has learned to the appropriate administrative or supervising judge (see Opinions 15-189 [“substantial and troubling irregularities”]; 08-99 [misconduct suggesting “the possibility of corruption within the court itself”]).

         Here, of course, the judge has already reported all the facts he/she learned to appropriate court administrators. We conclude nothing more is required under Opinions 15-189 and 08-99.

         Concerning the propriety of any further actions concerning this concluded case, including possibly restoring it to the calendar, such questions are primarily legal in nature and we therefore decline to address them (see Judiciary Law § 212[2][l]; Opinion 10-114; cf. Opinion 13-54 [“The Rules Governing Judicial Conduct are rules of reason; they do not ordinarily require judges to sua sponte re-open proceedings that have already been adjudicated”]).

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¹ Court administrators subsequently assured the judge the issues had been addressed, without providing further details.