June 18, 1992
Digest: If a part-time lawyer-judge concludes that another part-time lawyer-judge (not entitled to practice in that court who requested the clerk to refrain from issuing an arrest warrant) was improperly requesting a personal favor from the court, constituting a substantial ethical violation, then the judge should report it, but if the judge determines that the violation was merely technical or insubstantial, then reporting it is at the judge’s discretion.
Rules: 22 NYCRR §§100.3(b)(3); 100.5(f).
A part-time lawyer-judge has inquired whether the judge has a duty to report another part-time lawyer-judge of a different court in the same county to the Commission on Judicial Conduct for requesting that the clerk in the inquiring judge’s court refrain from issuing a bench warrant for a client who would be represented by the part-time judge/attorney’s partner.
It is accepted practice for an attorney to request a court to refrain from issuing a bench warrant for a client on condition that the client be produced at the court at an agreed upon time. It is improper for a judge to request a court to refrain from issuing a bench warrant for a person as a personal favor to the judge. Additionally, the part-time judge who made this request is not allowed to practice law in the inquiring judge’s court (22 NYCRR 100.5[f]) because the judges of this court are part-time lawyer-judges and the inquiring judge is a part-time lawyer-judge in another court in the same county.
Section 100.3(b)(3) of the Rules of the Chief Administrator states:
A judge shall take or initiate appropriate disciplinary measures against a judge or a lawyer for unprofessional conduct of which the judge may become aware.
As stated in prior opinions of the Advisory Committee on Judicial Ethics, a judge must determine whether the specific conduct at issue likely constitutes a “substantial” violation of professional or judicial ethics. If it does, he or she should report the conduct; if it does not, there is no ethical obligation to report, and the decision is at the judge’s discretion. Conduct which is improper but not substantial or “misconduct”, thus not requiring reporting to the Commission on Judicial Conduct, still appropriately may be reported to the administrative judge. Advisory Committee on Judicial Ethics Opinion 91-36, Vol. VII.
The Advisory Committee is not authorized to construe provisions of the Code of Professional Responsibility, but is authorized to construe provisions of the Code (Canons) of Judicial Conduct.
Although the Advisory Committee, based upon sufficient facts, may have a view about whether a violation of judicial ethics is substantial, in this case the judges of the court are in a better position than the Committee to make that judgment, in light of their knowledge of the customary practices in the court. If the judge seeking this opinion concludes, as a factual matter, that it is likely that the judge/attorney, who may not practice in that court, improperly was requesting an inappropriate personal favor, and that in the light of the practices and procedures followed in the court, this appears to be a substantial violation, then the judge should report the other judge to the Commission on Judicial Conduct. However, if the inquiring judge believes, on all the facts, that a violation of the rules occurred that was insubstantial or merely technical, the judge has the discretion whether or not to report the violation to the Commission on Judicial Conduct. See Advisory Committee on Judicial Ethics, Opinions 89-54, Vol. III, 89-74, Vol. IV, 89-75, Vol. IV, 91-36, Vol. VII and 91-114, Vol. VIII.