July 29, 2013
This responds to your inquiry (13-69) asking whether you are required to report another part-time lawyer/judge for engaging in misconduct.
A judge must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a part-time lawyer/judge who has information indicating a substantial likelihood that another part-time lawyer/judge has committed a substantial violation of the rules governing the lawyer’s or judge’s professional/judicial conduct must take appropriate action (see 22 NYCRR 100.3[D],).
If a judge concludes that another judge or lawyer has engaged in a substantial violation of the Rules, the action the judge must take will depend on the nature of the misconduct (see Opinion 09-190). For example, if the misconduct is so serious that it calls into question a judge’s fitness to continue in office, or an attorney’s honesty, trustworthiness or fitness as a lawyer, the judge must report the conduct to the appropriate disciplinary authority (see Opinions 10-85; 08-146; 08-83; Joint Opinion 05-105/05-108/05-109). However, if the conduct is not so serious, the judge has the discretion to take some other, less severe action than reporting the conduct to a disciplinary authority (see Opinion 10-85). And, if the conduct is an insubstantial or technical violation, it is within the judge’s discretion to take or not take some appropriate action (see 09-190).
I have enclosed a copy of Opinions 10-85, 09-190, 08-146, 08-83 and Joint Opinion 05-105/05-108/05-109 for your convenience. If you are unsure how to proceed after reading these Opinions, please feel free to contact the Committee for further advice.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)