Opinion 25-175

December 18, 2025

Digest:  A judge who believes that one litigant illegally recorded another litigant’s conversations has no ethical obligation to take any action, but may do so in his/her discretion.  We cannot comment on any legal questions.

Rules:   22 NYCRR 100.2; 100.2(A); 100.3(D)(1)-(2); Opinions 19-84; 17-90; 16-25; 08-155; 07-144; 03-110.

Opinion:

          During a proceeding before the inquiring judge, one party admitted using a recording device to record certain conversations that took place in his/her absence “without the knowledge of any [participants in] these conversations.”  The judge believes the litigant who sought to, and apparently did, surreptitiously record the other litigant’s conversations “may have” committed a crime.  The recording device was marked for identification and placed into the court’s custody, but the parties ultimately settled the matter without completing steps for authentication or admission of the device into evidence.  The judge asks if it is ethically permissible to inform the district attorney about the incident and give him/her the device.

          A judge 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 must “respect and comply with the law” (id.).  If a judge receives information indicating a substantial likelihood that “a lawyer” or “another judge” has committed a substantial violation of the applicable professional ethics rules, he/she must take appropriate action (22 NYCRR 100.3[D][1]-[2]).

Because a judge’s disciplinary obligations under the Rules apply only to possible misconduct by “a lawyer” or “another judge” (id.), “a judge need not report a non-judge/non-attorney’s apparent crimes to any authority, but may do so in his/her sole discretion” (Opinion 19-84 [citation omitted]).  Indeed, we have expressly declined to require a judge to report anyone to the district attorney (see e.g. Opinions 19-84; 17-90).

          Here, too, the inquiring judge has no ethical obligation to inform prosecutors of the alleged crime, but may do so in his/her sole discretion (see Opinions 19-84; 16-25; 08-155; 07-144; 03-110). In exercising that discretion, the judge may consider a wide variety of circumstances, including the likelihood of injury if the conduct is not reported (see generally id.).

          Finally, the judge speculates that the device “may have recorded conversations of [the other litigant] with their attorneys” before it was discovered and/or “may have recorded Court proceedings or the Court’s conversations” while in the court’s custody, but apparently has not taken any steps to ascertain whether the device contains legally protected information.  While we cannot address any legal questions, we note the judge may consult with his/her administrative judge for guidance on such matters.

Editorial Note 3/23/2026: Typo corrected (deleted extraneous line break).