Opinion 22-43

April 1, 2022

Dear :

This responds to your inquiry (22-43) in which you stated that you have become aware of reports of off-duty misconduct posted online concerning another judge’s principal law clerk. You have further stated that the accusations allege that the law clerk has a history of “demeaning” high school students engaged in an extracurricular activity over a period of years and making “explicit sexual comments” to them while serving in a position of authority. You have no personal knowledge of the alleged misconduct, but have noted that these online complaints are “readily available by doing a simple Google search of the attorney’s name.” You have asked if you must report the other judge’s law clerk.

Pursuant to the Rules Governing Judicial Conduct, if a judge receives information indicating a substantial likelihood that an attorney has committed a substantial violation of the Rules of Professional Conduct, the judge must take appropriate action (22 NYCRR 100.3[D][2]). However, the Committee has advised that where the judge has no direct personal knowledge of the purported misconduct, he/she is under no obligation to investigate the matter, and has wide discretion in deciding whether to take any action (see Opinion 20-201). Absent such personal knowledge, the first prong of the test, the substantial likelihood, is not met (see Opinion 15-138/15-144/15-166). “[M]ere rumor, gossip, innuendo, or other ‘third hand’ information, does not trigger a judge’s disciplinary obligations” (id.).

Here, you have no personal knowledge of the alleged attorney misconduct, so the “substantial likelihood” prong does not appear to have been met and you have no duty whatsoever to act under Section 100.3(D)(2) (see Opinions 19-48; 16-110). However, in your sole discretion, you may voluntarily undertake actions that you believe are appropriate under the circumstances (see id.).

Enclosed for your convenience are Opinions 20-201; 19-48; 16-110; 15-138/15-144/15-166 which address this issue.

          Very truly yours,

                                       Margaret Walsh

                                       Supreme Court Justice

                                      Committee Co-Chair

                                       Lillian Wan

                                       Supreme Court Justice

                                      Committee Co-Chair

Encls.