Opinion 21-165
October 28, 2021
Digest: (1) Where court staff have relayed to a judge certain remarks made
openly by a physician witness while waiting for the case to be called, and
the judge concludes those remarks reflect gender and other bias and a
lack of professionalism to a level that could directly impact the doctor’s
credibility and/or might be relevant in evaluating the conclusions reached
in the physician’s report, the judge (a) may, but need not, report the
remarks to an appropriate authority, and (b) must disclose the remarks to
all parties so that they may be heard on the matter.
(2) Whether the judge may rely on these remarks in a published decision
is a legal question on which we cannot comment.
(3) The judge may, in their sole discretion, disclose that they sought
ethical advice in this matter.
Rules: Judiciary Law § 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.3(B)(4)-(6); 100.3(B)(6)(c); 100.3(C)(2); 100.3(D)(1)-(2); 101.1; Opinions 21-131; 19-133; 19-90; 18-138; 16-25; 15-153; 08-54; 07-192; 07-82; 06-13; 05-84; 03-110; 96-95; 88-85/88-103.
Opinion:
A full-time judge has become aware of an off-the-record conversation between a doctor-witness and another individual while waiting for their respective cases to be called into the record. The conversation took place in court-provided facilities within the hearing of the judge’s staff, who relayed it to the judge. The doctor’s comments were derogatory toward several past litigants and dismissive of efforts to address sexual harassment. In the judge’s view, the reported comments reflected gender and other biases and showed a lack of judgment and un-professionalism to a level that could directly impact the doctor’s credibility and reflect potential bias that might be relevant in evaluating the conclusions reached in the doctor’s report. The judge asks if it is necessary to report the incident to the Inspector General on Bias Matters; if the judge must or may disclose the incident to counsel in the case (and if so, how); whether the incident may “be part of the decision that is ultimately issued”; and whether the judge may “disclose to counsel that the court sought an ethics opinion on this issue regarding the doctor’s pre-hearing statements.”
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not “initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding” unless an exception applies (22 NYCRR 100.3[B][6]). A judge must discharge their judicial duties without bias or prejudice against or in favor of any person and “shall require” similar conduct of “staff, court officials and others subject to the judge’s direction and control” (22 NYCRR 100.3[B][4]; 100.3[C][2]). Furthermore, a judge in discharging their adjudicative duties also must “require lawyers in proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice based upon” factors such as “sex, sexual orientation, gender identity, [or] gender expression” (22 NYCRR 100.3[B][5]). Relatedly, a judge must take “appropriate action” when the judge concludes there is a substantial likelihood that “a lawyer” or “another judge” has committed a substantial violation of the applicable rules of professional ethics (22 NYCRR 100.3[D][1]-[2]).
1. Reporting the Incident
We have advised there is no ethical duty for a judge to report misconduct or even criminal conduct of a witness or party discovered during the litigation, where that individual is neither an attorney nor a judge (see e.g. Opinions 88-85/88-103 [need not report doctor witness’s failure to report taxable income]; 03-110 [need not report auto dealerships’ forged records to any authority]; 05-84 [need not report statutory rape revealed in connection with proceedings]; 06-13 [need not report positive drug test for a doctor who was a party to divorce action]; 15-153 [need not report violation of probation terms committed by relative of a child in a neglect proceeding]; 16-25 [need not report police officer who failed to comply with subpoena, even when it resulted in dismissal of the traffic ticket]; 19-90 [need not report former paralegal who forged judge’s signature on judgment]).
Here, too, we conclude the judge has no ethical duty to report the apparent misconduct of this non-judge, non-attorney witness. Nonetheless, the judge may, in their sole discretion, choose to report this matter to any relevant authority (see e.g. Opinions 88-85/88-103; 03-110; 05-84; 15-153; 19-90 [judge has no ethical obligation to report illegal activity but may exercise discretion in doing so]). In exercising that discretion, the court should take into consideration all of the circumstances, particularly the impact of reporting the misconduct on the administration of justice (see Opinion 88-85/88-103); the likelihood of injury if the conduct is not reported (see Opinion 06-13); and if appropriate, the timing of reporting the misconduct (see Opinion 16-25, fn. 2).
2. Disclosure to Counsel
With respect to the judge’s question about whether and how to disclose this matter to counsel on the pending case, we note that a judge must “accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law” (22 NYCRR 100.3[B][6]). Of course, a judge need not disclose consultations “with court personnel whose function is to aid the judge in carrying out the judge’s adjudicative responsibilities” (22 NYCRR 100.3[B][6][c]). However, in this instance, the judge’s staff members relayed comments made openly by a witness in a pending case while waiting in court-provided facilities for the case to be called. Critically, the judge has concluded that the doctor-witness’s comments, if they occurred as relayed by the judge’s staff, could directly impact the doctor’s credibility and/or reflect potential bias that might be relevant in evaluating the conclusions reached in the doctor’s report.
On these facts, we believe the communication should be disclosed to the parties so they may have an opportunity to be heard on the matter (cf. Opinions 08-54 [generally advisable to disclose ex parte communication to all parties and counsel]; 07-82 [when the court received an ex parte letter from party addressing only attorney’s conduct without any evidentiary facts, the judge may exercise discretion in disclosing contents]; 07-192 [judge must disclose letter from defendant’s former attorney disclosing defendant committed perjury in a proceeding and is likely to commit perjury if defendant testifies in instant matter]; 96-95 [letter from bar association containing facts of an evidentiary nature regarding issues to be addressed in a CPL 440 motion should be disclosed to all parties]).1
The manner of disclosure is left to the discretion of the judge as long as it comports with Section 100.3(B)(6).
3. Reliance on the Communication
We must decline to answer the judge’s question about whether the incident may “be part of the decision that is ultimately issued.” In our view, any reliance on the doctor’s statements in subsequent proceedings or decisions is a legal, not an ethical question, which we cannot address (see generally Judiciary Law § 212[2][l]; 22 NYCRR 101.1; Opinion 18-138 [noting that “admissibility is a legal question”]).
4. Disclosure of Ethics Inquiry and/or Advice Received
Finally, the inquiring judge asks if it is ethically permissible to disclose to counsel that they sought an ethics opinion in this matter. In our view, the decision to reveal advice received from the Committee is entirely within the discretion of the judge (see Opinions 19-133; 21-131).
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1 While we cannot comment on legal questions, if the judge concludes that some portion of the overheard conversation was privileged, such material should be excised from any such disclosure (see e.g. Opinion 07-192).