Opinion 22-113

September 8, 2022

Digest:         A judge who reported another judge’s alleged misconduct to an administrative judge has no further ethical obligations, unless the inquiring judge concludes that the alleged misconduct seriously calls into question the other judge’s fitness as a judge.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(D)(1); 100.6(B)(2)-(3); Opinions 21-138; 21-19; 09-113.

Opinion:

         The inquiring part-time attorney judge reviewed a petition in an eviction proceeding at a recent calendar call. The petition contained a signature line labeled “Clerk of the Court,” but the signature was not the court clerk’s. On inquiry from the judge, petitioner’s counsel contacted a law firm colleague and reported back that the label “Clerk of the Court” was a law firm clerical error.¹ During a break in the calendar, however, the judge realized the signature appeared be that of another part-time attorney judge in the same county. Petitioner’s counsel confirmed this in the courtroom. The attorney requested leave of the court to withdraw the case. The application was granted. The judge then alerted their administrative judge of the foregoing. The judge asks if there are any further ethical obligations to pursue.

         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]). A judge who receives information indicating a substantial likelihood that another judge has committed a substantial violation of the Rules Governing Judicial Conduct must take “appropriate action” (22 NYCRR 100.3[D][1]). A part-time attorney judge “shall not practice law ... in any other court in the county in which his or her court is located, before a judge who is permitted to practice law” (22 NYCRR 100.6[B][2]), but “may permit the practice of law in his or her court by the partners or associates of a judge of a court in another town, village or city who is permitted to practice law” (22 NYCRR 100.6[B][3]).

Overview of Applicable Standards

         As described in Opinion 21-19 (citations omitted):

In general, we have advised that the judge who has first-hand knowledge of all the facts and persons involved in a particular situation is in the best position to determine whether there is a “substantial likelihood” that another judge has committed a “substantial violation” of the Rules. If the judge concludes that either of these two elements is missing, the judge need not take any action. 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.

In most instances, even when disciplinary action is required, what action is “appropriate” is left to the judge’s discretion under all the circumstances. Only when the conduct is truly egregious -- for instance, “if the misconduct is so serious that it calls into question a judge’s fitness to continue in office” (Opinion 21-19) -– have we said it must be reported to the Commission on Judicial Conduct.

Otherwise, “if the misconduct, although substantial, does not reach that level of seriousness” (id. [citations omitted]), we advised that

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.”

Discussion

         Here, although the attorney who appeared in person before the inquiring judge on the eviction matter is merely the partner or associate of another part-time attorney judge in the same county (cf. 22 NYCRR 100.6[B][3]), that attorney has now advised the inquiring judge that the other judge personally prepared and signed the eviction petition, in apparent violation of Section 100.6(B)(2). As we explained in Opinion 09-113, not every transgression will necessarily and inevitably require a referral to the Commission on Judicial Conduct:

it is not the Committee’s view that a judge must report a lawyer judge every time the lawyer judge contacts another court in the same county that is presided over by a lawyer judge, as the Committee recognizes that there are circumstances when such contact may be benign or innocent or in exigent circumstances; and thus should not cause the lawyer judge to be subjected to an investigation by the Commission on Judicial Conduct. In such instances, especially if they are isolated, a less severe measure would be sufficient (e.g, informing the lawyer’s employer or partner or his/her supervising judge, or counseling and cautioning the lawyer judge not to repeat the conduct).

Somewhat analogously, we considered an instance where, in the course of presiding in a criminal case, a non-attorney judge “learned that the attorney appearing as special prosecutor recently became a part-time judge” (Opinion 21-138). The inquiring judge recognized it was improper for another judge to appear as prosecutor, and reported it to court administrators. After receiving reassurances that the District Administrative Judge had addressed the matter, the inquiring judge wrote to us to ask if it was also necessary to report the other judge to the Commission on Judicial Conduct. On those facts, we advised that “the judge need not take any further action” (id.).

         Again, only in clearly egregious circumstances - not present here - will we mandate reporting to disciplinary authorities (see Opinion 21-138). Assuming, without deciding, that the two-prong test is met here (a matter left to the judge’s discretion), we believe it is entirely within the judge’s discretion to determine what action is “appropriate” under the circumstances, bearing in mind the applicable standards set forth above. The facts set forth in the inquiry suggest that the mislabeled signature line may have been an isolated incident caused by poor law office clerical oversight. The inquiring judge took immediate, measured steps to ascertain the identity of the person who signed the petition above the erroneous label. Once the other judge’s signature was confirmed, the inquiring judge granted the petitioner’s request to withdraw the petition, which will presumably afford the law office an opportunity to arrange for a different attorney (i.e. one who is not a part-time judge) to prepare and sign the petition (see 22 NYCRR 100.6[B][2]-[3]). The inquiring judge then took the additional step of reporting the facts to their administrative judge (cf. Opinion 21-138).

         On the facts presented, we conclude that the inquiring judge need not take any further action.

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¹ For purposes of this inquiry, we understand it was proper for the document to be prepared and signed by a private attorney, rather than by a court clerk.