March 13, 2008
Digest: Whether a judge may disclose information about a defendant’s apparent misconduct revealed to the judge during a settlement conference raises a question of law beyond this Committee’s jurisdiction.
Rules: 22 NYCRR 100.3(D)(1)-(2); 101.1; Opinions 06-13; 05-84; 03-110; CPLR 4547.
With the parties’ consent, a judge presiding over a medical malpractice action, engaged in ex parte settlement discussions. When speaking to the self-represented defendant, the judge asked him/her to “tell me in confidence” about the prospects for settlement. The judge assured the defendant that the judge would not reveal the substance of their discussion to plaintiff’s counsel. The defendant advised the judge that he/she is the subject of three prior judgments and is judgment proof. The defendant also stated that, in order to conceal certain misrepresentations he/she had made when applying for medical malpractice insurance, he/she dissuaded the insurance carrier from undertaking a defense of the current action. The judge believes the defendant’s conduct is endangering the public health and that the defendant is defrauding the insurance carrier. The judge asks whether he/she may disclose such information to the New York State Medical Licensing Board or the defendant’s insurance carrier.
While a judge must take appropriate action when he/she has substantial knowledge of another judge’s or an attorney’s substantial violation of the applicable rules of conduct (22 NYCRR 100.3[D]-), there is no comparable rule requiring a judge to report a party’s or witness’s misconduct or illegal activity that comes to the judge’s attention during a proceeding in his/her court (see Opinions 06-13 [A judge is not ethically required to report that a physician who is a party in a matrimonial proceeding has tested positive for drugs]; 05-84 [A judge is not ethically required to report an apparent incident of statutory rape that came to the judge’s attention when a 15 year old pregnant female, pursuant to the Domestic Relations Law and with her parents’ consent, filed a petition in the judge’s court seeking authorization to marry.]; 03-110 [A judge is not ethically required to report that certain automobile dealerships were altering their records and registering commercial vehicles as passenger vehicles, in violation of applicable statutes.])
While the Committee previously has advised that a judge may choose to report criminal activity or other misconduct that comes to the judge’s attention during a proceeding in his/her court (see Opinions 06-13; 05-84; 03-110), in the present inquiry, the judge learned about the defendant’s misconduct during a settlement conference. The Committee, therefore, must decline to answer the judge’s inquiry as it raises a question of law (see, e.g., CPLR 4547) beyond this Committee’s jurisdiction (22 NYCRR 101.1).