November 26, 2012
This responds to your inquiry (12-166) asking whether you are ethically obligated to report a judge’s conduct occurring during a private dispute with a court employee which took place on court premises.
Pursuant to the Rules Governing Judicial Conduct, “[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]). In general, the Committee has advised that the judge who has first-hand knowledge of all the facts and persons involved in a particular situation is in the best position to determine whether there is a “substantial likelihood” that another judge has committed a “substantial violation” of the Rules. If the judge concludes that either of these two elements is missing, the judge need not take any action. However, if a judge concludes that another judge’s alleged conduct constitutes a substantial violation of the rules and that the violation is so serious that it “calls into question a judge’s fitness to hold judicial office” (Joint Opinion 05-105/05-108/05-109), the Committee has advised that the judge must report the matter to the Commission on Judicial Conduct. But, if a judge determines that the violation at issue is not so serious, or is merely technical in nature, it is within his/her discretion to take less severe, ethically appropriate action, such as dealing with the matter administratively (see id).
Enclosed, for your convenience, is Joint Opinion 05-105/05-108/05-109 and Opinions 09-190 and 08-83 which address this issue. Also enclosed, for your reference, is a copy of Opinion 10-85 which is the Committee’s most recent comprehensive statement of the similar, applicable principles and considerations in the analogous context of attorney misconduct.
Very truly yours,
George D. Marlow,
Assoc. Justice (Ret.)
Appellate Division, First Dept.