Opinion 22-47

April 5, 2022

Dear :

This responds to your inquiry (22-47) in which you have stated that you heard and granted an ex parte application for a temporary order of protection against an individual. The matter was later assigned to another judge for the arraignment and further proceedings. Nonetheless, the defendant somehow obtained your personal contact information and has repeatedly texted and called you to express dissatisfaction with your issuance of the temporary order of protection. The defendant’s messages, which have persisted for many weeks, have become more threatening and show no signs of abating, even though you have not answered the phone or responded in any way. You plan to report this conduct to law enforcement and/or the District Attorney’s office, and have asked:

(1)    if there are “any additional steps” you should take under Part 100; and

(2) are you “conflicted from other cases involving the same Police Department and/or DA’s Office,” due to your role as witness and victim.

Question 1: Obligations Under Part 100

         A judge’s disciplinary obligations under Section 100.3(D) apply only to possible misconduct by “a lawyer” or “another judge.” Thus, the Committee has advised that a judge has the discretion to determine whether or not to advise the appropriate enforcement authorities of any criminal activity or misconduct on the part of a litigant or witness that is revealed in the course of a proceeding (see Opinion 88-85/88-103; see also Opinions 19-45; 09-171).

Therefore, you do not have any ethical obligation to report defendant’s misconduct to law enforcement. However, you may report such conduct, but it is solely within your discretion to do so (see id.).

Question 2:  Conflict of Interest

In Opinion 14-55, the Committee advised that a judge who is called as a witness in a criminal case concerning threats allegedly made against the judge may continue to preside over unrelated matters involving the attorneys who are prosecuting or defending that criminal case, provided the judge concludes he/she can be fair and impartial in the matters before him/her.

Accordingly, you may continue to preside over unrelated matters involving the police department and/or district attorney’s office, provided you can be fair and impartial in matters that come before you.

Enclosed for your convenience are Opinions 19-45; 14-55; 09-171; 88-85/88-103 which address this issue.

                               Very truly yours,

                                       Margaret Walsh

                                       Supreme Court Justice

                                       Committee Co-Chair

                                       Lillian Wan

                                       Supreme Court Justice

                                       Committee Co-Chair

Encls.