Opinion 89-79

September 12, 1989

Digest:         A judge may publicly discuss a complaint lodged against the judge with the Commission on Judicial Conduct, which subsequently was dismissed, since a judge may waive the right to confidentiality regarding       proceedings on complaints filed against the judge before the        Commission on Judicial Conduct.

Rules:          22 NYCRR 5100.2(a) and 7000.1 et seq; Judiciary Law §§44 and 45; NYS Const. Art. VI, §22

Opinion:

         Certain conduct of a judge was the subject of a complaint made to the New York State Commission on Judicial Conduct. The Commission subsequently advised the judge that it had dismissed the complaint. The judge inquires of this Committee whether or not a judge may publicly discuss such a complaint and its disposition.

         The New York State Commission on Judicial Conduct is created and empowered by the New York State Constitution, Article VI, 522. Matters relating to the operating procedures and rules of the commission are set forth in Article 2-A of the Judiciary Law and at 22 NYCRR §§7000.1 et seq. Proceedings before the Commission are confidential; however, upon a determination of improper conduct and related sanction, the full record of the proceedings is made public. Judiciary Law, §44, subd. 7. A hearing on a complaint is not made public unless the judge waives the confidentiality and requests an open hearing. Judiciary Law §44, subd. 4.

         Judiciary Law §45 allows a judge to waive the confidentiality of all records of the Commission relating to a complaint, regardless of the disposition, and to designate that such records be made available for inspection and copying to the public or to any designated person, agency or body.

         Consequently, a judge who has been the subject of a complaint which has been dismissed may waive the right to confidentiality of the matter and discuss it with any person, agency, body or the general public. There is a caveat, however. A judge must respect and comply with the law, and must conduct himself or herself at all times in a manner which promotes public confidence in the integrity and impartiality of the Judiciary. 22 NYCRR §100.2(a). When discussing complaints filed against the judge with the Conmission (whether founded or dismissed), a judge must keep the above rule in mind and discuss the matter in a dignified and professional manner. However, it is clear that a judge is not prohibited from revealing publicly that a complaint made against the judge to the Commission on Judicial Conduct has been dismissed by the Commission, if that be the fact.