Opinion 08-99

June 6, 2008

Digest:         A town justice who discovers evidence that certain court personnel may have engaged in misconduct that suggests the possibility of corruption within the court itself must report all the facts he/she has learned to his/her administrative judge. The town justice may, but is not obliged to, report the apparent misconduct to any other authority, including the district attorney, other municipal officials or the police.

Rules:         22 NYCRR 50.1(I)(A) and (B); 100.1; 100.2(A); 100.3(C)(2); 100.3(D)(1) and (2); Opinion 07-144.

Opinion:

         A town justice recently discovered evidence that certain court personnel may have engaged in misconduct. Among other things, a traffic ticket issued to a former court clerk’s relative was inappropriately modified and deleted from the court’s computer system on the court clerk’s last day of employment, and a cache of original documents entrusted to the former court clerk for proper handling and storage was discovered among documents to be shredded. It appears that there is also an ongoing investigation into another improperly dismissed traffic ticket that may implicate both the former clerk and another person who currently works in the courts. The inquiring judge has taken steps to reinstate the court clerk’s relative’s traffic ticket and to restore the cache of original documents found with other documents to be shredded, but asks if he/she must report his/her findings to the district attorney, executive branch officials, the police, the local administrative judge, “or any other authority.”

         While a judge is required by the Rules Governing Judicial Conduct to take appropriate action when he/she receives information indicating a substantial likelihood that a lawyer or another judge has committed a substantial violation of the applicable ethical code or rules (see 22 NYCRR 100.3[D][1] and [2]), the Rules are silent regarding the disciplinary responsibilities of a judge with respect to other persons (see generally 22 NYCRR 100.3[D]). This Committee has previously addressed the disciplinary responsibilities of a judge with respect to non-attorney litigants, witnesses and acquaintances, holding that the judge is “under no obligation to report [such] misconduct to any authority, but may do so in his/her discretion” (Opinion 07-144). Now, for the first time, the Committee must consider the disciplinary responsibilities of a judge with respect to court personnel who are neither attorneys nor judges.

         In fulfilling his/her administrative responsibilities, a judge must require staff, court officials and others subject to his/her direction and control to observe the standards of fidelity and diligence that apply to the judge (22 NYCRR 100.3[C][2]). In addition, pursuant to Part 50 of the Rules of the Chief Judge, nonjudicial court employees of the Unified Court System have an independent but corresponding duty to respect and comply with the law and must not use their positions or the prestige of judicial affiliation to secure privileges or exemptions for themselves or others (22 NYCRR 50.1[I][A] and [B]). While nonjudicial employees of town and village courts are not subject to the rules set forth in Part 50, those rules nevertheless provide standards by which the Committee can evaluate the inquiring judge’s responsibilities in light of the circumstances he/she faces. When read together, therefore, both the Rules Governing Judicial Conduct and the Rules Governing Conduct of Nonjudicial Court Employees implicitly recognize that misconduct by court personnel can, under some circumstances, undermine public confidence in the integrity and impartiality of the judicial system itself (cf. 22 NYCRR 100.1; 100.2[A]).

         Accordingly, because the nature of the apparent misconduct that has come to the inquiring judge’s attention reveals the possibility of corruption within the court itself, it is the Committee’s view that the judge must report all the facts he/she has learned to his/her administrative judge. The judge may, but is not obliged to, report the apparent misconduct to any other authority, including the district attorney, other municipal officials or the police.