May 2, 2019
Digest: A support magistrate may report a litigant’s apparently criminal conduct to law enforcement but is not ethically required to do so. Whether and how he/she may do so in compliance with applicable statutes and regulations raises a legal question, not one of judicial ethics.
Rules: Family Court Act § 166; 22 NYCRR 100.2; 100.2(A); 100.3(D)(1)-(2); 100.6(A); 22 NYCRR 205.5; Opinions 18-49; 17-07; 15-153; 11-48; 09-171.
A support magistrate asks if he/she must report certain non-attorney litigants who appeared before him/her to law enforcement authorities, as he/she believes they have committed a crime. If he/she must or may make such a report, the support magistrate further asks how to do so while complying with certain privacy requirements (see Family Court Act § 166; 22 NYCRR 205.5).
A person who performs judicial functions within the judicial system, such as a support magistrate or other quasi-judicial employee, must comply with the Rules Governing Judicial Conduct in the performance of his/her judicial functions and otherwise must “so far as practical and appropriate” use such rules as guides to his/her conduct (see 22 NYCRR 100.6[A]; see also Opinion 11-48). Accordingly, a quasi-judicial employee must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge or quasi-judicial official who “receives information indicating a substantial likelihood that [an attorney or another judge] has committed a substantial violation” of the applicable disciplinary rules must “take appropriate action” (22 NYCRR 100.3[D]-).
A judge’s disciplinary obligations under Section 100.3(D) apply only to possible misconduct by “a lawyer” or “another judge” (see e.g. Opinion 17-07). Thus, a judge or quasi-judicial official “is under no ethical obligation to report the misconduct of a litigant which is revealed during the course of a court proceeding” (Opinion 09-171; see also Opinion 15-153 [“judge need not report apparent probation violations committed by an individual appearing before him/her”]).
Accordingly, a support magistrate may, but is not ethically obligated to, report the apparent misconduct of non-attorney litigants to law enforcement. We believe this support magistrate’s concern regarding how to comply with applicable rules and statutes if he/she elects to report the misconduct raises a legal question, not one of judicial ethics. Thus, if the support magistrate makes a good-faith legal determination that applicable rules and statutes permit him/her to make the report, he/she may ethically do so (see e.g. Opinion 18-49).