Opinion 23-239
February 1, 2024
Digest: A judge is not ethically required to investigate alleged misconduct.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(D)(2); Opinions 23-113; 23-50; 22-64; 22-49; 18-58; 15-138/15-144/15-166; 13-127; 10-122; 10-86.
Opinion:
The inquiring judge was told by another judge’s law clerk that an attorney once moved, unsuccessfully, to sever their client’s criminal trial from that of a co-defendant based on the co-defendant’s race. As recounted by the other judge’s law clerk, the attorney argued that “everyone knows black people commit crimes at a higher rate than whites” and that the jury might therefore “make adverse inferences” against the attorney’s white client if tried with a black co-defendant. The judge knows the name of the attorney, but has virtually no other information about the incident and certainly no first-hand knowledge of it.[1] The judge asks whether the Rules Governing Judicial Conduct require or permit the judge to investigate the matter.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). If a judge has information indicating a “substantial likelihood” that a lawyer has committed a “substantial violation” of the Rules of Professional Conduct, that judge must take “appropriate action” (22 NYCRR 100.3[D][2]).
It is well-established that a judge “is under no ethical obligation to investigate whether allegations of misconduct are true” and thus may discharge their disciplinary responsibilities, if any, “based on those facts already known to the judge without further inquiry” (Opinion 22-64; see also e.g. Opinions 15-138/15-144/15-166; 13-127; 10-122; 10-86). Here, too, we conclude the inquiring judge has no obligation to investigate the alleged misconduct.
We have advised that it is ordinarily within the discretion of the inquiring judge to determine whether there is a “substantial likelihood” of a “substantial violation” of the applicable disciplinary rules, as the judge is “in the best position to evaluate and assess all relevant, known circumstances” (Opinion 22-49, quoting Opinion 18-58). We have explained that judges who are not a supervising or administrative judge, and who have no direct knowledge of the alleged misconduct, have “especially wide discretion to make a threshold determination of whether there is a ‘substantial likelihood’ of a substantial violation under all the circumstances currently known to them” (Opinion 15-138/15-144/15-166). Even if a judge determines that both prongs are met, the “appropriate action” to be taken is also ordinarily left to the judge’s discretion (see Opinions 22-49; 15-138/15-144/15-166). Only if the judge determines that the alleged misconduct “is so egregious that it seriously calls into question the attorney’s honesty, trustworthiness or fitness to practice law” must the judge report the conduct to the attorney grievance committee (see Opinions 23-113; 22-49). However, a judge may also exercise their discretion to report an attorney’s conduct even where not ethically required to do so (see e.g., Opinions 13-127; 10-122).
We note that if the inquiring judge reports the attorney to the attorney grievance committee, then the judge is disqualified from all matters involving that attorney both while the disciplinary proceeding is pending and for two years after it has concluded (see Opinions 23-50; 13-127).
As for whether the judge may investigate the alleged misconduct, we merely reiterate our prior caution that “a judge should not undertake to conduct their own ad hoc ‘disciplinary proceeding’ of an attorney absent clear legal or administrative authority to do so” (Opinion 23-113 fn 2).
[1] For example, the inquiring judge has no idea when the incident allegedly occurred or even the name of the defendant.