Joint Opinion 05-105,05-108, and 05-109


October 27, 2005


 

Digest:         (1) Under the particular circumstances presented, an administrative judge who receives information that a judge pressured lawyers to join the judge’s election committee should report the information to the Commission on Judicial Conduct. (2) In the same circumstances, a judge, having received such information, and having reported it to the administrative judge, is not required also to report the claim to the Commission on Judicial Conduct, provided the administrative judge has reported the conduct in question, or assures the judge he/she intends to do so. (3) Under the particular circumstances presented, the accused judge, who denies the accusations and asserts that one of the accusing lawyers is an officer of a political party who signed an affidavit containing the false accusation for use against the judge in the election, should report the matter to the attorney grievance committee and should exercise recusal in the lawyer's cases.

 

Rules:          22 NYCRR Part 100, Preamble; 100.2; 100.2(A); 100.3(D)(1); 100.3(D)(2); 100.3(E)(1); 100.5(A)(4)(a). Opinions: 89-54 (Vol. III); 90-13 (Vol. V); 90-74 (Vol. V); 92-42 (Vol. IX); 94-46 (Vol. XII); 97-84 (Vol. XVI); 97-99 (Vol. XVI); 97-102 (Vol. XVI); 98-95 (Vol. XVII); 00-64 (Vol. XIX); 02-129; 02-133; 03-03; 03-59; 04-47; 04-74, 04-116.


Opinion:


         This joint Opinion addresses three separate inquiries, all relating to the same alleged events and all seeking the Committee's guidance as to the writers' respective obligations. Two come from judges –- an administrative judge and a non-administrative judge-- who received information from lawyers that a judge improperly pressured them for support in the judge's campaign for election to higher judicial office. The third inquiry is from the accused judge, who asserts that the accusation is false. The judge adds that one of the accusing lawyers repeated the charge in an affidavit that was used against the judge during the election campaign. In the interest of fairness, clarity of context, and completeness, the Committee has decided to treat the inquiries jointly. The three inquiries contain the following facts and allegations:


         A lawyer informed an acting justice that a city court judge who was seeking election to the Supreme Court had called the lawyer up to the bench during court proceedings and asked the lawyer to lend the lawyer's name to the judge's election committee list. The allegation is also that the judge persisted with the solicitation after the lawyer objected and reminded the judge that the lawyer was appearing in a case before the judge that day. The acting justice reported this information to the district administrative judge, who informed the city court’s supervising judge, and they arranged to meet with the accused judge. Around the same time, a different lawyer complained to the district administrative judge that this additional lawyer had been the target of identical conduct by the same city court judge just outside the judge's courtroom. Both lawyers stated the solicitation had persisted until the lawyers acquiesced and allowed their names to be used, fearing that by refusing, their clients' cases would suffer. The administrative judges also became aware that other lawyers, whom they did not interview, had been talking about similar conduct by the same judge. When the administrative judges met with the city court judge in a "counseling session," the judge "adamantly" denied any solicitation of lawyers in the courthouse and asserted that the judge had "scrupulously avoided" such conduct.


         Shortly thereafter, the lawyer who was allegedly solicited outside the courtroom signed an affidavit describing the claimed improper solicitation, which the county chairperson of a political party, who also holds higher office in the state party, read at a press conference. According to the city court judge, this lawyer is a member of the party's county committee, and the affidavit was false. As far as this judge is aware, this attorney has filed no charges against the judge (which this Committee interprets to mean charges with the State Commission on Judicial Conduct).


         The district administrative judge inquires whether the administrative judges have any disciplinary obligation beyond the "counseling session" with the city court judge. The acting justice asks whether that judge has any obligation beyond reporting the first lawyer's information to the district administrative judge. The city court judge asks (a) whether he/she is obliged to report the affiant-lawyer's conduct to the attorney grievance committee; (b) whether the judge is required to exercise recusal in cases in which this lawyer appears if the lawyer does not file charges against the judge; and (c) if recusal is required, how long it should last.


         Rule 100.3(D)(1) of the Rules Governing Judicial Conduct states that "A judge who receives information indicating a substantial likelihood that another judge has committed a substantial violation of [the Rules Governing Judicial Conduct] shall take appropriate action." 22 NYCRR 100.3(D)(1).


         Generally, whether information, if true, sets forth a "substantial violation" of the Rules, rather than a lesser or technical violation, is left to the judge's discretion. Opinions 98-95 (Vol. XVII), 97-84 (Vol. XVI). In certain cases, however, the alleged information, if true, so clearly sets forth a "substantial violation" that the judge's discretion on that point is limited to reporting the matter to the State Commission on Judicial Conduct. See, e.g., Opinions 92-42 (Vol. IX); 00-64 (Vol. XIX), 03-59. Whether this matter falls into the latter category depends on whether the conduct alleged, if true, calls into question the judge’s fitness to hold judicial office without, at least, an investigation being conducted by the State Commission on Judicial Conduct. We believe it does.


         Rule 100.2 provides that a judge "shall avoid impropriety and the appearance of impropriety in all of the judge's activities, and shall not lend the prestige of judicial office to advance the private interests of the judge or others." Rule 100.2(A) states that a judge must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Rule 100.5(A)(4)(a) provides that a judge who is a candidate for elective judicial office shall act in a manner consistent with the integrity of the judiciary. This Committee, without deciding whether or not the lawyers' allegations are true (that issue being beyond the purview of the Committee), believes that a judge's advancing his or her electoral interests through persistent pressuring in and near the courtroom, of lawyers who have cases pending before the judge, especially in the face of the lawyers' ethical objections, constitutes significant violations of these rules. See, Opinions 97-99 (Vol. XVI), 02-133.


         The next questions under Rule 100.3(D)(1) are whether the information received is information “indicating a substantial likelihood" that the alleged misconduct of the city court judge occurred, such that a judge is obliged to take appropriate action, and if so, what is "appropriate action." Considering these questions in the unusual situation presented here, the Committee is guided by the Preamble to the Rules, which states that "[T]he rules governing judicial conduct are rules of reason . . ." Thus, on the one hand, virtually identical reports to judges by members of the Bar have been received. One report has been repeated under oath. Cf., Opinion 90-13 (Vol. V). Further, there are indications that other lawyers have also spoken of similar solicitations. But, on the other hand, the accused judge has adamantly denied the allegations, charges one of the lawyers with lying under oath, and asserts that this person holds a position of leadership in a political party and has presented the affidavit for use by the head of that party in a press conference, held in the midst of an election campaign.


         This Committee cannot judge the credibility of these conflicting allegations and is not empowered to do so, nor are the administrative judges equipped to investigate them. But, the lawyers' allegations should not be left hanging in the court system without further inquiry by an independent agency. The charges are sufficiently serious, and the information sufficiently consistent, that under the particular circumstances presented, the Committee believes the inquiring administrative judge should report them to the authority vested with the responsibility of investigating complaints regarding the conduct of judges, the State Commission on Judicial Conduct. See, Opinions 03-59, 00-64 (Vol. XIX). In Opinion 02-129, which dealt with the analogous question of when to report alleged attorney misconduct [Rule 100.3(D)(2)], the Committee stated that under the circumstances presented a judge should refer to the attorney grievance committee a plaintiff's claim that an attorney failed to convey an offer of settlement. Much of the Committee's reasoning applies equally here: “. . . the judge has no knowledge of what occurred other than what was stated in chambers prior to trial. That is, the judge does not know whether any offer was conveyed and thus is not in a position to determine whether there has been an ethical violation, substantial or otherwise. But the question of misconduct has been raised and is therefore before the judge. The judge, however, is not an investigator. . ." There, as here, the appropriate action was to refer the accusation to the appropriate disciplinary agency for investigation.


         In view of this determination regarding the administrative judge's inquiry, the Committee concludes that under the circumstances presented, the judge's obligation is satisfied when that judge reports the information to the administrative judge, and is made aware that the latter has reported, or will report the alleged conduct to the State Commission on Judicial Conduct. The judge may himself or herself also report the information to the Commission, if that judge deems it advisable to make an additional report. See, Opinion 00-64 (Vol. XIX).


         As to whether the city court judge is obliged to present to a grievance committee this judge's accusation against the lawyer who signed the affidavit, Rule 100.3(D)(2) provides: "A judge who receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Code of Professional Responsibility shall take appropriate action." A substantial violation is one that implicates the attorney's honesty, trustworthiness, or fitness as a lawyer. Opinions 89-54 (Vol. III), 04-74.


         Whether a judge has a duty to take action against a lawyer in a particular case is usually a matter of discretion. The "general principle" is that "a judge who becomes aware of troublesome conduct by an attorney must determine whether, in the judge's opinion, such conduct violates professional ethics, and if so, whether the violation is substantial, in which case the judge should report the violation." Opinion 04-116, quoting Opinion 90-74 (Vol. V). While that is the general principle, this Committee has found that if an allegation against a lawyer, if true, sets forth a substantial violation of professional ethics, the judge should inform the appropriate authorities of the allegation, unless the judge finds that it is without credibility. See, Opinions 04-116, 04-47, 02-129. According to the inquiring city court judge, a lawyer has lied under oath regarding a judge's conduct associated with the lawyer's case to discredit the judge for political purposes. This accusation directly implicates the lawyer's honesty and trustworthiness. In addition, the judge's allegation is one of two sets of sharply conflicting, serious accusations which, as the Committee has noted earlier in this Opinion, are of a kind best sorted out by an independent agency with investigative capability. Therefore, under the circumstances of this particular case, the Committee, without passing on the truthfulness of the inquiring judge's allegation, believes the judge should refer it to the appropriate grievance committee. See, Opinion 02-129.


         Under the circumstances, the inquiring city court judge should exercise recusal in any case in which the affiant-lawyer appears. A lawyer's complaint against a judge, without more, does not automatically require recusal, as long as the judge believes that he or she can remain impartial. Opinions 94-46 (Vol.XII), 97-102 (Vol. XVI). On the facts presented here, however, the judge's impartiality "might reasonably be questioned" if an attorney appearing before the judge is one whose honesty and trustworthiness the judge has attacked, who has complained about the judge to the supervising judge, and who in a hotly contested election has publicly challenged the judge's ethics and fitness for the bench. See, Opinion 03-03; Rule 100.3(E)(1).


         It would be inappropriate for the Committee to state at this time how long the obligation to recuse should remain in effect, as that "may depend upon a number of factors which are not presently before the Committee and which at this point remain entirely speculative." See, e.g., Opinion 97-102 (Vol. XVI).