March 28, 2016
This responds to your inquiry (15-183) asking about your reporting obligations under the Rules Governing Judicial Conduct after learning a police report contains a defendant’s unconfirmed, but also un-denied, allegation an Assistant Public Defender directed a racial/ethnic slur toward the defendant.
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 an attorney substantially violated the Rules of Professional Conduct, he/she must take appropriate action (see 22 NYCRR 100.3[D]). However, a judge has no duty to investigate the truth of misconduct allegations.
The Committee has often advised judges they must decide if there is a substantial likelihood an attorney substantially violated the Rules of Professional Conduct; as the judge is ordinarily best positioned to evaluate and assess all relevant, known circumstances including the information’s reliability. This is particularly important where the information is based solely on hearsay. If the “substantial likelihood” prong is not met, the judge is not ethically required to take any action at all. Conversely, if the judge concludes, in his/her sole discretion, the “substantial likelihood” prong is met, he/she must then consider whether the “substantial violation” prong is also met. If so, he/she must then also decide what action is appropriate under the known circumstances.
Enclosed, for your convenience, are Opinions 15-138/15-144/15-166; 14-39; and 08-198 which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)