May 2, 2007
This responds to your inquiry (06-150) regarding your obligation to report the misconduct of an attorney during a proceeding involving the Chief of Police, over which you presided as a hearing officer for a municipality under the Civil Service Law. You ask whether you are obligated to take any action in your capacity as a town justice. You specifically ask if you should respond to a letter sent to you by the attorney, on behalf of the Chief of Police, and whether there are any other judicial ethics or professional responsibility issues that you, as justice, must address.
Because the attorney sent this letter to you in your capacity as a hearing officer, and not in your capacity as a judge, this Committee cannot make a recommendation regarding how you should proceed in that capacity. Further, the Committee is not in a position to construe the Code of Professional Responsibility (the “Code”) or to determine whether the conduct in question violates the Code. Opinion 06-100.
The Rules Governing Judicial Conduct do state, however, that “[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.” 22 NYCRR 100.3(D)(2). This Committee has determined that it is generally up to the judge to decide whether there is a substantial likelihood that an attorney has substantially violated the Code. Opinions 06-100; 05-30. Should you conclude that there is a substantial likelihood that the attorney has violated the Code, you are obligated to take appropriate action, which may include a referral to the appropriate Attorney Grievance Committee. Opinions 06-100; 05-37.
If you choose to file such a complaint, you should exercise recusal, subject to remittal, in all matters where the attorney appears before you in your capacity as justice, while the complaint is pending before the Grievance Committee. Opinions 06-100; 05-37.
Regarding any possible misconduct (not the subject of the Civil Service Law hearing) on the part of the Chief of Police, this Committee has previously stated that a judge is not ethically required to report criminal or other misconduct by witnesses or litigants. Opinions 05-84; 03-110; Joint Opinion 88-85 and 88-103 (Vol. III). A judge may, however, in the exercise of discretion, choose to report such misconduct.