Opinion 21-138

September 9, 2021

Digest:       Where a judge reported to court administrators that a part-time attorney judge inappropriately appeared as a prosecutor, and was advised that the District Administrative Judge has addressed the matter, the judge need not take any further action.

Rules:        22 NYCRR 100.2; 100.2(A); 100.3(D)(1)-(2); 100.6(B)(2); Opinions 21-19; 20-15; 18-165; 15-189.

Opinion:

       While presiding in a criminal case, the inquiring judge learned that the attorney appearing as special prosecutor recently became a part-time judge.¹ The inquiring judge reported the incident to court administrators and was told that the matter would be addressed by an appropriate administrative/supervising judge. Thereafter, the inquiring judge received a voucher from the attorney judge “requesting payment as a Special Prosecutor” for prosecutorial services provided both before and after assuming the bench. The inquiring judge sought direction from court administrators and was told to take no action on the voucher at this time. They also advised the judge “that the Administrative Judge had addressed the matter with the Attorney Judge.” On these facts, the inquiring judge asks if he/she must file a disciplinary complaint against the other judge.

       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]).

       As the judge has already concluded that the two-prong test is met, the only question for us is what constitutes “appropriate action” under the circumstances. Ordinarily, the determination of what action is appropriate is left to the discretion of the inquiring judge. As described in Opinion 21-19 (citations omitted):

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. “[W]hat determines ‘appropriate action’ depends upon all the surrounding circumstances known to the judge, including an assessment of whether the individual, if confronted by the judge, shows genuine remorse, contrition, or ignorance of a rule; whether the individual has any history of unprofessional or other conduct in violation of the Rules; or any other relevant conduct or factor known to the judge.”

Thus, only in clearly egregious circumstances - not present here - will we mandate reporting to disciplinary authorities. Here, of course, the judge has already acted; the judge reported all the facts to appropriate court administrators in the judge’s jurisdiction, and was advised that the District Administrative Judge has addressed the matter. On these facts, we conclude that the inquiring judge need not take any further disciplinary action (see e.g. Opinions 20-15; 18-165; 15-189).

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¹ While the inquiring judge did not select or appoint the special prosecutor, the judge understands the attorney was not a judge at the time of the original appointment. Rather, the attorney became a part-time judge while the criminal case was pending. We note that the prohibitions of Section 100.6(B)(2) are inapplicable here, as the judges preside in different courts and the inquiring judge is not “permitted to practice law” (22 NYCRR 100.6[B][2]).