Opinion 25-164

November 6, 2025

Digest: (1) When a judge concludes, based on communications he/she received directly from Judge A, that Judge A has committed a substantial violation of the Rules Governing Judicial Conduct and that the violation is so serious that it calls into question Judge A’s fitness to hold judicial office, he/she must report Judge A to the Commission on Judicial Conduct.
(2) Where a judge lacks information indicating a substantial likelihood that Judge B has committed a substantial violation of the Rules Governing Judicial Conduct, he/she need not take any action, but may do so in his/her sole discretion.

Rules:   22 NYCRR 100.1; 100.2; 100.2(A); 100.3(D)(1); Opinions 23-243; 22-115; 22-113; 21-19; 18-66; 11-08.

          The inquiring judge has received multiple communications from Judge A expressing dissatisfaction with Judge A’s current judicial assignment and sharing ideas about strategies, such as refusing to set bail, that might “force” court administrators to reassign Judge A.  In the inquiring judge’s view, Judge A has also “spoken and acted in a manner that shows bias against the district attorney’s office.”  Shortly after a prosecutor criticized Judge A’s judicial temperament on the record, the inquirer received further communications from Judge A claiming that a longstanding courtroom set-up was unethical and refusing to call cases until the set-up was changed.  After reviewing these communications, the inquiring judge has “serious questions about Judge A’s ability to be fair and impartial, as well as about [Judge A’s] appreciation of [his/her] fundamental responsibilities as a judge.”  Subsequently, the inquiring judge learned from an administrative or supervising judge that Judge B was likewise refusing to call cases until the courtroom set-up was changed, but the inquiring judge is “not aware” of any underlying statements or behavior by Judge B similar to those evidenced in the communications from Judge A.  The judge asks if he/she must report either or both judges to the Commission on Judicial Conduct.

          A judge must uphold the integrity and independence of the judiciary (see 22 NYCRR 100.1), must always 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]).  A judge who receives information indicating a “substantial likelihood” that another judge has committed a “substantial violation” of the Rules Governing Judicial Conduct must “take appropriate action” (22 NYCRR 100.3[D][1]).

          We have previously summarized the applicable disciplinary standards in Opinion 21-19 (citations omitted):

In general, we have advised that the judge who has first-hand knowledge of all the facts and persons involved in a particular situation is in the best position to determine whether there is a “substantial likelihood” that another judge has committed a “substantial violation” of the Rules.  If the judge concludes that either of these two elements is missing, the judge need not take any action.

Conversely, if a judge concludes that both prongs are met, the judge must take “appropriate action” (see id.).

          Even where the two-prong test is met, what action is “appropriate” under the circumstances is ordinarily left to the judge’s discretion (see Opinion 22-113).  But if the judge also concludes that the alleged violation, if proved, is so serious that it calls into question a judge’s fitness to hold judicial office, then the judge is ethically obligated to report the matter to the Commission on Judicial Conduct (see e.g. Opinions 23-243; 22-115).  By contrast, if a judge determines that the violation at issue is not so serious, or is merely technical in nature, it is within his/her discretion to take less severe, ethically appropriate action, such as counseling the judge or dealing with the matter administratively (see e.g. Opinions 22-113; 18-66).

          With respect to Judge A, the “substantial likelihood” prong is met because the inquiring judge received information about the alleged misconduct directly from Judge A.  Moreover, based on these directly received communications, the inquiring judge has already concluded that the “substantial violation” prong is met.  Thus, the two-prong test is satisfied and the judge must take “appropriate action.”  We need not analyze Judge A’s alleged conduct in detail here, because the inquiring judge has already concluded that the communications received from Judge A raise “serious questions about Judge A’s ability to be fair and impartial, as well as about [Judge A’s] appreciation of [his/her] fundamental responsibilities as a judge.”  These concerns directly implicate questions of fitness for judicial office (see e.g. Opinions 22-115; 11-08).  Therefore, the inquirer is ethically required to report Judge A to the Commission on Judicial Conduct so that the issue can be investigated (see id.).

          With respect to Judge B, by contrast, it is not clear that either prong is satisfied.  The inquiring judge is “not aware” of any biased statements or actions by Judge B.  At most, the inquiring judge has learned second-hand that Judge B objected to the same courtroom set-up as Judge A and similarly refused to call cases; but beyond that, the inquiring judge has no information whatsoever and has no duty to investigate.  We conclude the inquiring judge need not take any action under Section 100.3(D)(1) with respect to Judge B.  Instead, the inquiring judge has complete discretion whether to take, or not take, any steps at all concerning Judge B’s conduct (see Opinion 18-66).