Opinion 10-175

 

January 27, 2011

 

Digest:         A judge who receives a letter from another judge in support of an application that is pending in the receiving judge’s court, under circumstances that indicate to the receiving judge that the letter was not solicited by an appropriate agency, must report the letter writer to the Commission on Judicial Conduct.

Rules:          22 NYCRR 100.1; 100.2; 100.2(A); 100.2(C); 100.3(D)(1); Opinions 10-181; 10-14; 09-190; 08-146; 08-83; 07-61; Joint Opinion 05-105, 05-108, and 05-109; Opinions 03-59; 02-09; 00-64 (Vol. XIX); 99-101 (Vol. XVIII); 90-13 (Vol. V); 89-73 (Vol. III); 89-04 (Vol. III); 88-159 (Vol. III); 88-63 (Vol. II).

Opinion: 

         The inquiring judge received an unsolicited letter from another judge about a defendant appearing in the inquiring judge’s court. The letter writer is related to the defendant and wrote to support defendant’s application for early discharge from probation. The inquiring judge advises that the letter did not in any way influence his/her decision on the application and that he/she believes that the other judge volunteered the letter, rather than writing at the Probation Department’s request. The inquiring judge asks whether he/she must report the letter writer’s conduct.

         A judge must uphold the integrity and independence of the judiciary (see 22 NYCRR 100.1), must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge who receives information indicating a substantial likelihood that another judge has committed a substantial violation of the Rules Governing Judicial Conduct (Rules) must take appropriate action (see 22 NYCRR 100.3[D][1]).

         The Committee has generally advised that a judge who learns of potential misconduct by another judge must determine for him/herself whether there is a substantial likelihood that another judge has committed a substantial violation of the Rules (see Opinions 09-190; 08-146). In the Committee’s view, the judge who has observed or who, based on reliable information, learns about another judge’s conduct, is ordinarily in the best position to determine whether such conduct constitutes a “substantial violation” of the Rules (see e.g. Opinions 10-181; 09-190 [setting forth several factors to consider in determining whether another judge’s conduct constitutes a substantial violation]).

         If a judge concludes that there is a “substantial likelihood that another judge has committed a substantial violation” of the Rules, the judge “must take appropriate action” (22 NYCRR 100.3[D][1]). There is a wide range of “appropriate actions” depending on the circumstances, and it is, therefore, ordinarily left to the judge’s discretion (see Opinion 09-190 [judge must take “whatever action he/she deems appropriate under the circumstances”]). However, if the misconduct is so serious so as to call into question a judge’s fitness to continue in office, then the judge must report the conduct to the Commission on Judicial Conduct (see Opinion 09-190).

         There have been a few instances where conduct described in an inquiry to this Committee, if true, clearly called into question another judge’s fitness to continue in office and, therefore, at the very least, warranted an investigation by the Commission (see Opinions 10-181 [after arraigning defendant and setting bail, judge personally posted bail using check drawn on judge’s spouse’s bank account, signed his/her spouse’s name to secure defendant’s release, and then drove defendant home]; 10-14 [judge offered to have a police officer destroy a traffic ticket the officer issued to the inquirer’s relative]; 08-83 [judge drove a car recklessly while intoxicated, expressed an expectation of special consideration due to his/her current and past official status, and presided more than once while intoxicated]; Joint Opinion 05-105/05-108/05-109 [judge improperly pressured lawyers to join judge’s election committee]; 03-59 [judge called inquirer’s court attorney asking for help in getting inquirer to disqualify him/herself so that a friend’s petition could be heard by a different judge]; 00-64 [Vol. XIX] [judge participated in a political party's interviews of candidates for judicial and non-judicial offices]; 90-13 [Vol. V] [judge interjected him/herself into civil lawsuit by threatening a party with possible prison time]).

         The Committee believes that the conduct described here, i.e. a judge voluntarily submitting a letter on behalf of a defendant’s application for early discharge from probation, is clearly prohibited under the Rules and prior opinions (see 22 NYCRR 100.2[C] [a judge shall not lend the prestige of judicial office to advance the private interests of the judge or others, and shall not testify voluntarily as a character witness]; Opinions 07-61 [quasi-judicial official may not write a character reference on behalf of a friend charged with a felony, to be sent to the judge assigned to the case]; 02-09 [judge should not write character reference for friend who is a criminal defendant in a federal court located outside New York State]; 89-73 [Vol. III] [judge should not voluntarily write character reference in support of lawyer awaiting sentencing]; 89-04 [Vol. III] [judge should not voluntarily write letter in support of former law clerk in connection with plea bargain in pending criminal prosecution]; 88-63 [Vol. II] [judge should not voluntarily write letter to probation department on behalf of suspended court employee]; see also Opinion 99-101 [Vol. XVIII] [judge should not, at attorney’s request, write letter on another judge’s behalf to the Commission on Judicial Conduct]).

         Because such conduct, if it occurred as described, would constitute a substantial violation of the Rules, the inquiring judge must take appropriate action (see 22 NYCRR 100.3[D][1]). And, in the Committee’s view, the alleged misconduct, if true, is likely to undermine public confidence in the judiciary because it suggests an attempt by one judge to improperly influence another judge (see e.g. Opinion 88-159 [Vol. III] [judge should not, on his/her own initiative, volunteer information or suggestions to influence another judge in sentencing a defendant]). Such conduct calls into question the letter writer’s fitness to continue in judicial office, thus imposing upon the inquiring judge an affirmative duty to report the letter’s author to the Commission on Judicial Conduct (see Opinions 10-181; 10-14; 03-59; 90-13 [Vol. V]).