Joint Opinion 15-138/15-144/15-166
January 28, 2016
Please Note: As of the Committee’s April 29, 2021 meeting:
(1) The Committee has not overruled its prior opinions prohibiting remittal of disqualification in matters where a judge previously reported an attorney to the grievance committee.
(2) With respect to whether a judge may publicly disclose the reason for recusal here, in light of the apparent dissonance between Judiciary Law § 9 (eff. December 2020) and Judiciary Law § 90(10), we have advised: “Whether a judge who has reported an attorney to an attorney grievance committee may publicly disclose the reason for recusal, when confidentiality has not been waived, is a legal question we cannot resolve.” See Opinion 21-45 (but noting that private disclosure to the reported attorney is ethically permissible).
Digest: (1) Where a judge has no direct personal knowledge whatsoever about purported misconduct of another judge or attorney, he/she has particularly wide discretion to make a threshold decision, based on information the judge has already received, of whether there is a “substantial likelihood” of a substantial violation under all the circumstances currently known to him/her. (2) If a judge believes the information he/she has is mere rumor, gossip, or innuendo, or is otherwise not sufficiently reliable or credible to warrant further consideration, the “substantial likelihood” prong is not met, and the judge is not ethically required to take any action at all. (3) Conversely, if the judge concludes, in his/her sole discretion, that the “substantial likelihood” prong is met, he/she must then consider whether the “substantial violation” prong is met and, if so, must also determine what action is appropriate under the circumstances presented.
Rules: Judiciary Law §§ 14; 212(2)(l); 22 NYCRR 100.2(A); 100.3(D)(1), (2); 100.3(E)(1); 100.3(E)(1)(a)(I); 100.3(F); 101.1; Opinions 14-150; 14-140; 14-88; 14-86; 13-146;11-116; 11-87; 11-64; 10-122; 10-86; 10-85; 09-142; 08-183/08-202/ 09-112; 08-198; 08-146; 08-83; 07-129; 07-82; 06-168; 06-99; 06-19/06-29; 05-37; 00-64; 98-95; People v Moreno, 70 NY2d 403 (1987); Brady v Maryland, 373 US 83 (1963).
Three judges request guidance on their disciplinary duties, if any, based solely on second- or third-hand reports of allegedly improper conduct by an attorney or another judge.1
In Inquiry 15-138, multiple individuals have advised the inquiring judge of a rumored personal relationship between a prosecutor and a key prosecution witness at the trial stage of a proceeding, soon to come before the inquiring judge on appeal. However, the judge’s informants are not speaking from personal knowledge, or even from conversations with those directly involved, but are instead relaying stories they have heard from unidentified third parties. The judge fears, if the rumors are true, non-disclosure of the relationship may have violated the defendant’s constitutional rights (see e.g. Brady v Maryland, 373 US 83 ). The judge also believes defendant’s counsel is entirely unaware of the rumored relationship.
In Inquiry 15-144, the inquiring judge is concerned another judge may have engaged in impermissible political activity, based on information from two individuals. One asserts the other judge made an accurate statement to him/her about which candidate a political party’s screening committee would support, before that decision was publicly announced (cf. Opinion 00-64 [reporting required when a judge “has direct, personal knowledge” that another judge attended a political party’s candidate interviews and then informed the inquirer that he/she would not receive the party’s nomination for judicial office]). The other person told the inquiring judge about a misdirected telephone call where the caller, perhaps inadvertently, revealed his/her belief the other judge supported a specific candidate.
In Inquiry 15-166, a person called to the scene of an alleged incident as a “first responder” advised the inquiring judge that another judge sexually assaulted someone and used his/her judicial position to influence the investigation so criminal charges were eventually dropped (cf. Opinion 08-83 [reporting required when a judge “has reliable information from, inter alia, his/her first-hand observations of the circumstances that another judge drove a car recklessly while intoxicated and also has substantial information that the other judge presided more than once while intoxicated”]). Although the inquiring judge does not explain his/her informant’s knowledge source in detail, the Committee assumes a first responder ordinarily receives information from the alleged victim in the immediate aftermath of an incident, and would have the opportunity to personally observe the scene, including any remarks or conduct of the alleged perpetrator if present. The inquiring judge emphasizes the information he/she received “is hearsay” but he/she nonetheless “believes it ...[is]true.”
I. Applicable Principles
A judge must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, if a judge receives information indicating a “substantial likelihood” that an attorney or another judge has committed a “substantial violation” of the applicable rules of professional ethics, the judge must take “appropriate action” (22 NYCRR 100.3[D]-).
The Committee will take this opportunity to provide guidance on how judges may analyze their disciplinary obligations, focusing on the three inter-related steps suggested by the language of the rule.
A. “Substantial Likelihood” Prong
A judge is under no duty to investigate whether allegations of misconduct are true (see e.g. Opinions 14-140; 10-85; 07-82). Moreover, the issue of whether a judge possesses information indicating a substantial likelihood that an attorney has committed a substantial violation of the Rules of Professional Conduct, or that another judge has committed a substantial violation of the Rules Governing Judicial Conduct, is typically within the inquiring judge’s discretion (see e.g. Opinions 14-140; 10-85; 08-198). This is because, generally, the inquiring judge is in the best position to evaluate and assess all relevant, known circumstances, including the reliability of the information known to the judge (see e.g. Opinions 14-140; 11-116; 10-85).
This general principle must apply with particular force where, as here, the inquiring judges are not supervising or administrative judges and have no direct personal knowledge whatsoever concerning the underlying allegations. Rather, all three judges have merely heard second- or third-hand reports concerning conduct that did not arise in connection with a proceeding before either of them.2 On these facts, the Committee concludes the inquiring judges have especially wide discretion to make a threshold determination of whether there is a “substantial likelihood” of a substantial violation under all the circumstances currently known to them (22 NYCRR 100.3[D]-; cf. Opinion 14-140). In so doing, the judges may consider a wide variety of factors that may weigh on the reliability of the information they have received, as well as their own view of whether the overall credibility and seriousness of the underlying charges may warrant investigation by a disciplinary authority (cf. Opinion 14-86). For example, in Inquiry 15-138 and 15-144, the judges’ informants themselves appear to have little, if any, personal knowledge of the alleged misconduct;3 whereas in Inquiry 15-166, the judge raises concerns about a possible abuse of judicial power by another judge, for the latter judge’s personal gratification, from a source who was apparently at the scene of the alleged incident and whom the judge finds credible. The Committee emphasizes that mere rumor, gossip, innuendo, or other “third-hand” information, does not trigger a judge’s disciplinary obligations.
If, after considering all relevant, known factors, the judge believes the information received is not sufficiently reliable or credible to warrant further consideration, the judge is not ethically required to take any further action. (As always, the judge may still, in his/her sole discretion, take some action even though he/she is not ethically required to do so.)
B. “Substantial Violation” Prong
If the judge determines, based on the information he/she has already received, that there is a substantial likelihood of an ethical violation, he/she must also consider whether the violation is “substantial” (see 22 NYCRR 100.3[D]-), under all the circumstances known to the judge.
This aspect, too, must be confined to the judge’s discretion in all but the clearest and most unambiguous cases, because the inquiring judge is in the best position to evaluate and assess all relevant, known circumstances. In determining whether a violation is “substantial,” the judge may again consider a wide variety of factors, including (among many others) the experience level of the attorney or judge, whether the violation appears to have been inadvertent or willful, whether it appears to be part of a larger pattern of improper behavior or an isolated incident, whether it reflects adversely on the individual’s honesty, trustworthiness, and fitness as a lawyer or judge, and whether the violation, if it occurred as described, is likely to undermine public confidence in lawyers or judges if not investigated and addressed.
If the judge is not certain that the conduct violates the applicable ethics rules, or concludes that the conduct is at most an insubstantial or a mere technical violation, he/she again need not take any action, although the judge may nonetheless do so, in his/her discretion.
C. “Appropriate Action”
If the judge determines, based on the information he/she has already received, that both prongs are satisfied (i.e., that there is a substantial likelihood of a substantial violation of the applicable ethics rules), the judge must take “appropriate action” (see 22 NYCRR 100.3[D]-), as indicated by all the surrounding circumstances known to the judge at the time.
In the vast majority of instances, even after the judge decides it necessary to take “appropriate action,” the issue of what action is “appropriate” under the circumstances is nevertheless within the judge’s discretion (see e.g. Opinions 10-122 [“What constitutes appropriate action necessarily depends on the context and nature of the substantial violation.”]; 10-85; 08-146).
Reporting to a disciplinary body is not mandatory unless the conduct at issue seriously calls into question a lawyer’s or judge’s honesty, trustworthiness or professional fitness, thus warranting, at the very least, an inquiry by the appropriate disciplinary body (see Opinions 14-88 [reporting required where the two-prong test is met and the alleged misconduct, “if proved, ... casts doubt on the attorney’s honesty, trustworthiness or fitness as a lawyer”]; 13-146 [reporting required where the two-prong test is met and “the alleged misconduct, if true, is likely to undermine public confidence in the judiciary”]; see also e.g. 14-140; 10-85; 07-129).
By contrast, if the judge concludes the conduct, though a substantial violation of ethics rules, does not reach that level of egregiousness, the judge has the discretion to determine that some lesser action is appropriate under the circumstances. As the Committee has explained:
What constitutes appropriate action necessarily depends on the context and nature of the substantial violation. The Committee has previously advised that a judge need not report an attorney to a disciplinary authority if the misconduct is not so egregious as to implicate the lawyer's honesty, trustworthiness or fitness to practice law. Rather, the judge has the discretion to take other appropriate measures instead of, or in addition to, reporting the attorney, including, but not limited to, counseling and/or warning a lawyer, reporting a lawyer to his/her employer, and/or sanctioning a lawyer. Appropriate action in such situations depends on all the surrounding circumstances known to the judge, including an assessment of whether the lawyer, if confronted by the judge, shows genuine remorse, contrition, or ignorance of a rule; whether the lawyer has any history of unprofessional or other conduct in violation of the Rules; or any other relevant conduct or factor known to the judge
(Opinion 10-122 [citations omitted]).
II. Application to the Present Inquiries
Here, while the inquiring judges have no ethical duty to investigate the truth of the reports they received, they should carefully consider whether the information they have already received is sufficiently reliable to rise to the level of a substantial likelihood the claimed misconduct took place, or whether it should be discounted, in whole or in part, as mere rumor, speculation, and innuendo. They may, in their analysis, also take into account the seriousness of the claimed misconduct, and whether it is of a type that, if true, would call into question the fitness of the attorney or judge. They may also consider any other factor which they believe relevant to the inquiry and analysis when exercising their discretion whether the two-prong test is met, and (if so) in determining what action is appropriate under the circumstances.
As to Inquiries 15-138 and 15-144, these decisions are left entirely to the sound discretion of each inquiring judge, as the Committee cannot say, with certainty, that either element of the two-prong test is clearly and unambiguously met under the facts described in the present inquiries.
As to Inquiry 15-166, the Committee cannot say, with certainty, that any of the information described by the judge in his/her inquiry satisfies the “substantial likelihood” prong. This determination must be left solely to the inquiring judge, given his/her personal assessment of the reliability and credibility of the information he/she has received in light of all relevant circumstances known to the judge. However, the Committee notes that Inquiry 15-166 describes conduct that, if it occurred exactly as described, would clearly satisfy the “substantial violation” prong, as it raises questions of a judge committing a serious crime and then using his/her judicial office in an attempt to escape the consequences. Of course, if the judge in Inquiry 15-166, in his/her sole discretion, determines that the “substantial likelihood” prong is not met, he/she need not take any action whatsoever. Conversely, if the judge determines, in his/her sole discretion, that the “substantial likelihood” prong is met after considering all relevant, known factors as described above, he/she must report the other judge to the Commission on Judicial Conduct.
The judge in Inquiry 15-138 further asks whether he/she must recuse from the proceeding.4 A judge must disqualify him/herself (subject to remittal, where permitted) in a proceeding in which the judge's impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]; 100.3[F]). The mere fact of a judge’s having heard rumors about a prosecutor’s out-of-court conduct during the trial phase of a proceeding cannot, in itself, reasonably cause the judge’s impartiality to be questioned when he/she presides over the appeal of the case. Where, as here, disqualification is not mandated pursuant to the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E]) or Judiciary Law § 14, the judge “is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court” (People v Moreno, 70 NY2d 403, 405 ; see Opinion 11-64). If the inquiring judge believes he/she cannot be fair and impartial, he/she must recuse.
The Committee notes, to the extent the judge in Inquiry 15-138 believes the prosecutor’s trial conduct may have violated the defendant’s constitutional rights, the question of what, if anything, the judge must, or is permitted to, do to safeguard a defendant’s rights while presiding over the appeal is primarily a legal issue this Committee may not address (see Judiciary Law § 212[l]; 22 NYCRR 101.1; Opinion 11-87). However, if the judge believes he/she cannot decide the appeal without considering ex parte rumors the parties or counsel did not raise or discuss, that would constitute a type of bias requiring disqualification from the case, without the possibility of remittal (cf. 22 NYCRR 100.3[E][a][i]).
Finally, if the judge in Inquiry 15-138 ultimately files a formal or informal complaint against the attorney, the judge must disqualify him/herself in all cases involving that attorney while the disciplinary matter is pending and for two years thereafter (see e.g. Opinions 09-142; 08-183/08-202/09-112; 06-99; 05-37). Provided that the judge is satisfied that other prosecutors in the same office were not involved in the purported misconduct, the judge may continue to preside in matters in which such other prosecutors appear, even if they are subordinates of the prosecutor the judge reported (see Opinions 06-168 [judge may preside in matters involving law firm partners and associates of the reported attorney]; 06-19/06-29 [judge may preside in matters involving assistant public defenders who are subordinates of a Public Defender the judge has reported]). To protect the attorney's right to confidentiality, the judge may not reveal the reason for his/her disqualification, and therefore remittal is not permitted during this period unless either the attorney chooses to waive confidentiality or the grievance committee issues a published disciplinary opinion (see e.g. Opinions 14-150; 14-88; 10-86; 09-142; 08-183/08-202/09-112). Conversely, if the disciplinary charges are dismissed, or if a private sanction is imposed, the judge must continue to disqualify him/herself from all cases involving the attorney for two years after the disciplinary matter is fully resolved, without revealing the reason and without the possibility of remittal (see Opinion 09-142).
1 None of the inquiring judges is an administrative or a supervising judge.
2 The conduct described in Inquiry 15-138 took place during trial of a matter before another judge.
3 In Inquiry 15-138, the informants are merely repeating gossip, and in Inquiry 15-144, they are sharing inferences they made from seemingly minor incidents.
4 Disqualification issues do not arise in connection with Inquiry 15-144 or Inquiry 15-166, since these involve allegations of judicial misconduct unconnected with any proceeding before the inquiring judge.