Opinion 25-28

February 6, 2025

Digest:   A judge who has first-hand knowledge that another judge improperly attempted to influence the outcome of a case before him/her must report the other judge to the Commission on Judicial Conduct.

Rules:    22 NYCRR 100.2; 100.2(A); 100.3(B)(6); 100.3(D)(1); Opinions 24-111; 23-21; 21-19; 17-135.

Opinion:

          The inquiring judge received several messages that Judge B, a superior court judge in another county, was “seeking information on the return of a warrant case that was to be handled that morning” in the inquirer’s court.  When they spoke, Judge B introduced him/herself and provided the defendant’s name.  Although the inquirer and local court staff had not previously heard anything about the matter, they notified Judge B promptly once it came in for arraignment.  At that point, Judge B asked the inquirer to “set bail and hold” the defendant.  Judge B then revealed his/her personal connection with the defendant; asserted alleged facts about the defendant’s personal circumstances, including drug use, health, homelessness, and status as a crime victim; and indicated that Judge B and the defendant’s family “want to save [the defendant’s] life” and get defendant into treatment for addiction.  On learning that Judge B’s interest was not related to official judicial duties, the inquirer advised Judge B that he/she was uncomfortable with the communication and would recuse from the matter.  In court, the inquirer stated briefly on the record that he/she was recusing as a result of an improper ex parte communication from a third party.  In chambers, the inquirer further advised counsel that the third party was “without standing” in the case, and that the information disclosed was of a type that, if true, “an arraigning Judge would want to know when rendering a decision on a securing order.”  Counsel did not ask further questions, and another judge apparently arraigned the defendant without incident.  The inquirer now asks questions concerning discipline, disclosure, and disqualification, which we will address seriatim. 

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  With certain exceptions not relevant here, 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” (22 NYCRR 100.3[B][6]).  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]).

1. Discipline

          The judge first asks if he/she must take any disciplinary steps, such as reporting Judge B, for these unsolicited ex parte communications conveying extra-judicial information to the inquirer and requesting action in a criminal case in an admittedly nonjudicial capacity.

          A judge generally has discretion to determine whether the threshold two-prong test is met, i.e. whether there is a “substantial likelihood” that another judge has committed a “substantial violation” of the Rules Governing Judicial Conduct.  If the two-prong test is satisfied, the judge must take “appropriate action,” but what action is appropriate under the circumstances is also ordinarily left to the judge’s discretion (see e.g. Opinion 24-111).  Reporting the other judge is not mandated unless the two-prong test is met and the alleged misconduct is truly egregious, such as, for instance, “if the misconduct is so serious that it calls into question a judge’s fitness to continue in office” (Opinion 21-19). 

          The “substantial likelihood” prong is met here, as the inquirer has reliable, first-hand knowledge from communicating directly with Judge B. 

          The “substantial violation” prong is also met because Judge B’s words and actions, as described in the inquiry, create an impression that he/she improperly tried to influence the outcome of a case before the inquiring judge. 

          This conduct, if proved, goes to the core of Judge B’s fitness to continue in office.  It is likely to undermine public confidence in the judiciary because it suggests an attempt by one judge to improperly influence another judge, and raises very serious questions about the colleague’s impartiality, fairness, and understanding of the proper role of a judge (see e.g. Opinions 21-19; 17-135). 

          Accordingly, Judge B’s conduct must be reported to the Commission on Judicial Conduct (see id.).  As in Opinion 21-19, we note that “whether all of Judge B’s statements and actions, either alone or in combination, may be susceptible of innocent explanation does not change the inquiring judge’s obligations.”

2. Disclosure

          The judge next asks if he/she must “disclose on or off record the verbatim communication and its source” to the defendant, defense counsel, and the prosecutor, notwithstanding that the judge has already recused from the case.

          As a matter of judicial ethics, the judge need not make any further disclosures. 

3. Disqualification

          Finally, the judge asks if it was necessary for him/her to disqualify from this matter. 

          In our view, the question is moot as the judge has already disqualified from the case.  We must decline to comment on past conduct or hypothetical counterfactual situations (see Opinions 23-21).