Opinion 13-71

July 29, 2013

Dear Justice:

         This responds to your inquiry (13-71) asking whether you are required to report another judge for engaging in misconduct. You advise that the judge presided in a criminal case where the lawyer who represented the defendant also was representing the judge before the Commission on Judicial Conduct.

         A judge must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge who has information indicating a substantial likelihood that a lawyer or another judge has committed a substantial violation of the rules governing the lawyer’s or judge’s professional ethics must take appropriate action (see 22 NYCRR 100.3[D][1],[2]).

         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 action other 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).

         The Committee concurs that a judge whose personal attorney appears in the judge’s court must disqualify him/herself during the representation and for 2 years after the representation ends (see Joint Opinion 08-171/08-174). However, the judge’s disqualification is subject to remittal (see id.). This means that it is not necessarily improper for the judge to preside over matters in which the attorney appears, because the parties and their attorneys may remit the disqualification pursuant to Section 100.3(F). Moreover, you are not required to investigate whether remittal took place (see generally Opinion 07-82). Thus, if (as the Committee assumes) you do not know whether there was remittal of disqualification, you need not take any further action, as you do not have information that raises a substantial likelihood that any misconduct occurred.

         I have enclosed a copy of Opinions 10-85, 08-146, 08-83,07-82, and Joint Opinions 05-105/05-108/05-109 and 08-171/08-174 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.)

Committee Chair

Encls.