Opinion 09-190

October 22, 2009

Digest:         Before a judge must take action with respect to another judge’s possible misconduct, the judge must have information indicating a substantial likelihood that the other judge has committed a substantial violation of the Rules Governing Judicial Conduct.

Rules:          22 NYCRR 100.1; 100.2; 100.2(A); 100.3(D)(1); 100.3(E)(1);100.6(B)(2); Opinions 09-49; 09-06; 08-146; 08-132; 08-83; 07-200; 05-142; 02-87; 00-64; 98-95 (Vol. XVII); 97-149 (Vol. XVI); 92-42 (Vol. IX); Joint Opinion 05-105/05-108/05-109.

Opinion:

         The inquiring part-time judge who is permitted to practice law advises that another part-time lawyer judge who practices law in the inquiring judge’s court may have committed a“substantial violation” of the Rules Governing Judicial Conduct. According to the inquiring judge, the court clerk in his/her court transferred a case from his/her docket to his/her co-judge’s docket, presumably because the co-judge is not a lawyer. The inquiring judge advises that he/she is uncertain whether the attorney asked the court clerk to transfer the case to the non-lawyer judge in the court or if the court clerk acted on his/her own initiative. The judge further advises that he/she intends informally to provide a copy of the Committee’s opinion to the practicing lawyer judge indicating that the practicing lawyer judge’s conduct is ethically improper. The inquiring judge asks whether doing so is “appropriate action” as required by §100.3(D)(1) of the Rules Governing Judicial Conduct.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). Therefore, 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 (see 22 NYCRR 100.3[D][1]).

         A judge is required to act only when the judge has information indicating a substantial likelihood that another judge has committed a substantial violation of the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[D][1]; Opinions 08-146; 05-142). And, the Committee has consistently advised that the judge who learns of potential misconduct must determine for him/herself whether another judge’s conduct is a substantial violation (see Opinions 08-146; 00-64 [Vol. XIX]; 98-95 [Vol. XVII]; 92-42 [Vol. IX]). In the Committee’s view, the judge who observes or who learns about another judge's conduct is in the best position to determine whether it constitutes a substantial violation of the Rules Governing Judicial Conduct given the context in which the conduct occurs (see Opinions 08-146; 07-200). If a judge does conclude that another judge has committed a substantial violation of the Rules Governing Judicial Conduct, the judge must take appropriate action (see 22 NYCRR 100.3[D][1]). And, if the misconduct is so serious so as to call into question a judge's fitness to continue in office, then the judge must report the conduct to the Commission on Judicial Conduct (see Opinion 08-146; 08-83; Joint Opinion 05-105/05-108/05-109). Alternatively, if a judge concludes that another judge's conduct is an insubstantial or a mere technical violation of the Rules Governing Judicial Conduct, it is within the judge’s discretion to take or not take some appropriate action (see Opinions 08-146; 05-142).

         Both the Rules Governing Judicial Conduct (Rules) and Committee opinions address the type of conduct that concerns this inquiring judge. Section 100.6(B)(2) of the Rules provides that a part-time judge who is permitted to practice law may not do so in any other court in the county in which his/her court is located, before a judge who is permitted to practice law. In construing these provisions of the Rules, the Committee has advised that a judge who is permitted to practice law may not ask that a case in which he/she represents a party be transferred to another judge who is not permitted to practice law solely to allow the judge who is permitted to practice law to appear and represent a client (see Opinions 08-132; 02-87; 97-149 [Vol. XVI]). Nevertheless, it is permissible for a judge who is permitted to practice law, and who is representing a client in a court where one or more judges before whom he/she cannot appear because they are permitted to practice law, and one or more judges before whom he/she can appear, to ask that a case be assigned to the latter, if he/she makes the request before the case is assigned to any judge in the court (see 09-06).

         In evaluating another judge's conduct to determine whether it constitutes a substantial violation of the Rules Governing Judicial Conduct, a judge should be guided by such provisions of the Rules as (1) A judge shall uphold the integrity and independence of the judiciary (see 22 NYCRR 100.1); (2) A judge shall avoid impropriety and the appearance of impropriety in all the judge's activities (see 22 NYCRR 100.2); (3) A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]); (4) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]; Opinion 08-146).

         Therefore, the inquiring judge must be guided by all of these principles in deciding whether he/she is required to act. If the judge concludes that the other judge’s conduct is a substantial violation of the Rules, the judge must take whatever action he/she deems appropriate under the circumstances (see 22 NYCRR 100.3[D][1]; Opinion 09-49). However, if the judge concludes that the other judge’s conduct is not a substantial violation of the Rules, the judge may, in the judge’s discretion, report the misconduct or take other appropriate action, but the judge is not mandated to take any action (see id.).

         In any event, nothing precludes the inquiring judge from providing the practicing part-time judge with the Committee’s earlier opinions that discuss the limitations imposed upon part-time lawyer judges who practice law.