December 6, 2021
This responds to your inquiry (21-137) asking if a court attorney-referee may report a litigant to the DA’s office for perjury and, if so, whether there “any specific rules” for the court attorney-referee to follow.
As quasi-judicial officials, court attorney-referees must comply with the Rules Governing Judicial Conduct in performing their duties and must otherwise “so far as practical and appropriate” use the Rules to guide their conduct (22 NYCRR 100.6[A]). The Rules do not mandate a judge or quasi-judicial official to bring misconduct to the attention of law enforcement authorities.
We have previously determined that a judge need not report a non-judge/non-attorney’s apparent crimes to any authority, but may do so in his/her sole discretion (see Opinions 19-84; 16-25; 88-85/88-103). In exercising that discretion, the judge may consider a variety of circumstances, including the likelihood of injury if the conduct is not reported (see e.g. Opinion 06-13).
Enclosed for your convenience are Opinions 19-84; 16-25; 06-13; 96-54; 88-85/88-103 which address this issue.
Very truly yours,
Margaret T. Walsh
Supreme Court Justice
Acting Supreme Court Justice