Opinion 23-21

February 2, 2023

Digest:         Although a judge must respect and comply with the law, the Advisory Committee on Judicial Ethics cannot resolve legal or administrative questions and declines to comment on past conduct, hypothetical conduct, or the conduct of third parties.

Rules:          Judiciary Law § 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.3(B)(1); 101.1; Opinions 21-168; 21-108; 17-140; 17-64; 16-08; 11-150; Matter of Bauer, 3 NY3d 158 (2004).

Opinion:

        The inquiring judge disagrees with their supervising judge and the public defender on how to proceed when the public defender requests $1 nominal bail under the applicable statute.¹ The judge asks us the following questions:

“Do I have an ethical obligation to comply with my Supervising Judge’s advice [about how to proceed]? If I fail to comply with [their] advice, am I subject to discipline by the [Commission] on Judicial Conduct?

Does my Administrative Judge have the authority to reassign me to desk duty for failing to comply with the advice of my Supervising Judge or disagreeing with their interpretation of the statute?

Do I have an ethical obligation to set $1.00 bail as requested by the Public Defender’s Office? If I fail to comply with the Public Defender’s request to set $1.00 bail, am I subject to discipline by the [Commission] on Judicial Conduct?”

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must “respect and comply with the law” (id.). Further, a judge must “be faithful to the law and maintain professional competence in it” (22 NYCRR 100.3[B][1]).

         We decline to answer questions about whether the judge might be “subject to discipline,” as they would require us to comment on either hypothetical conduct or past conduct, and to speculate on the potential future actions of an independent agency constitutionally vested with authority to investigate and discipline judges (see e.g. Opinions 17-140 [hypothetical or speculative questions]; 17-64 [past conduct]; 11-150 [conduct of third parties]).

         As to whether the judge has an ethical obligation to set $1.00 bail as requested by the public defender’s office, we note merely that the judge must “respect and comply with the law” (22 NYCRR 100.2[A]; cf. Matter of Bauer, 3 NY3d 158, 163 [2004] [discussing bail determinations]).

         The remaining issues are primarily legal and/or administrative in nature, and we must therefore decline to address them (see e.g. Opinions 21-168; 21-108; 16-08; 22 NYCRR 101.1; Judiciary Law § 212[2][l]).

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¹ According to the inquiry, the statute leaves a key term undefined, and there are no reported decisions interpreting the relevant provisions.