September 10, 2015
Digest: A judge need not report apparent probation violations committed by an individual appearing before him/her.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(D)(1)-(2); 101.1; Opinions 10-50; 10-36; 08-155; 08-99.
While presiding in a neglect case, a Family Court judge learned the child’s relative was on probation and apparently violated his/her probation. There is no indication the relative is a lawyer or judge, but the judge asks if he/she must report the violations to the relative’s probation officer or department.
A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge who “receives information indicating a substantial likelihood” that a lawyer or a judge “has committed a substantial violation” of the applicable professional ethics rules must take “appropriate action” (22 NYCRR 100.3[D]-).
A judge is not ethically required to report possible misconduct or criminal activities of a litigant, witness, or other non-lawyer/non-judge who appears before him/her (see Opinions 10-50; 10-36; 08-155).1 Additionally, the Committee has never previously advised that a judge has an ethical obligation to report anyone to the probation department and declines to do so here.
Thus, in the Committee’s view, the judge is not required to report the relative’s apparent probation violations. However, the judge may, if he/she deems it appropriate in his/her sole discretion, report the possible misconduct to an appropriate authority.
Any questions about whether the relative is a proper resource for the child present legal issues beyond the Committee’s jurisdiction (see 22 NYCRR 101.1) but which the inquiring judge has the authority to resolve.
1 Nor is this a situation “that suggests the possibility of corruption within the court itself,” as when a judge discovers evidence that court personnel may have inappropriately modified and deleted court records (see Opinion 08-99).