Opinion 17-135

December 7, 2017


Digest:         A judge who has first-hand knowledge that another judge improperly attempted to influence the outcome of a case before him/her must report the other judge to the Commission on Judicial Conduct.


Rules:          22 NYCRR 100.2; 100.2(A); 100.3(D)(1); Opinions 17-48; 15-124; 15-94; 15-70; 13-146; 10-175; 10-14; 88-159.


         The inquiring judge conducted a multi-day equitable distribution hearing in a contentious matrimonial case with numerous exhibits and witnesses. On the last day of the hearing, another judge (“the colleague”) approached him/her in a non-public area of the courthouse and initiated discussion of the case. The colleague indicated that the case was a matter of interest and discussion among members of a particular organization, and told the inquiring judge that “everybody knows” certain purported attributes of each of the parties, attributes he/she then described to the inquiring judge. The colleague told the inquiring judge that he/she assured the members of the organization that the inquiring judge “was a good judge.” The inquiring judge, caught by surprise and very uncomfortable, left without saying anything. The judge has already taken certain practical steps to address the situation in consultation with his/her administrative judges, but asks if the conduct must also be reported to 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 receives information indicating a substantial likelihood that another judge has committed a substantial violation of the Rules Governing Judicial Conduct must take “appropriate action” (22 NYCRR 100.3[D][1]).

         As we advised in Opinion 13-146 (citations omitted):

A judge is not required to conduct an investigation of the alleged misconduct and, therefore, may discharge his/her disciplinary responsibilities based on facts already known to the judge without further inquiry. In general, the Committee has advised that the judge, who has first-hand knowledge of all the facts and persons involved in a particular situation, is in the best position to determine whether there is a “substantial likelihood” that another judge has committed a “substantial violation” of the Rules. If a judge concludes that either of these two elements is missing, he/she need not take any action. If a judge concludes that there is a substantial likelihood that another judge has engaged in a “substantial violation” of the Rules, the action the judge must take will depend on the nature of the misconduct. For example, if the misconduct is so serious that it calls into question a judge’s fitness to continue in office, the judge must report the conduct to the appropriate disciplinary authority. By contrast, if the misconduct, although substantial, does not reach that level of seriousness, the judge has the discretion to take some other, less severe action than reporting the conduct to a disciplinary authority.

All of these determinations are ordinarily left to the inquiring judge’s discretion (id.). Indeed, the Committee “cannot judge the credibility of allegations of misconduct and is not empowered to do so” (Opinion 15-94 [citations and internal quotation marks omitted]). However, as stated in Opinion 17-48 (citations omitted):

There have nonetheless been instances where the facts described in an inquiry make clear the inquiring judge has sufficient information to meet the initial “substantial likelihood” threshold and the conduct described, if true, clearly calls into question another judge’s fitness to continue in office. In such instances, the Committee has generally advised that “appropriate action” necessarily involves reporting the conduct to the Commission on Judicial Conduct for inquiry and investigation.

         Here, the “substantial likelihood” prong is clearly met, as the inquiring judge has reliable, first-hand knowledge from speaking directly with his/her colleague.

         As for the “substantial violation” prong, the colleague’s words and actions, as described in the inquiry, create an impression that he/she tried to influence the outcome of a case before another judge.

This conduct, if proved, goes to the core of the colleague’s fitness to continue in office. It is likely to undermine public confidence in the judiciary because it suggests an attempt by one judge to improperly influence another judge, and raises very serious questions about the colleague’s impartiality, fairness, and understanding of the proper role of a judge (see Opinion 88-159 [“A judge should not, on his own initiative, volunteer information or suggestions to influence another judge in sentencing a defendant.”]; see also e.g. Opinions 15-124; 15-70; 10-175; 10-14).

Accordingly, the inquirer must report his/her colleague’s conduct to the Commission on Judicial Conduct.