Opinion 17-48

March 16, 2017


Digest:         The inquiring part-time attorney judge must report to the Commission on Judicial Conduct that another judge, while presiding over a case, threatened to file a disciplinary complaint against the inquirer unless the inquirer’s client settled the case for a particular sum.


Rules:          22 NYCRR 100.2; 100.2(A); 100.3(D)(1); Opinions 15-124; 15-94; 14-86; 10-175; 99-148; Matter of Mulroy, 94 NY2d 652 (2000).


         The inquiring part-time judge, who is permitted to practice law, states that he/she recently appeared before another judge (Judge B) on behalf of a defendant in a jury trial involving multiple defendants. After the trial was underway, but before it was decided, Judge B spoke with the inquirer in chambers ex parte and off the record. In this conversation, Judge B accused the inquirer of an ethical violation1 and informed the inquirer that if his/her client did not immediately settle the case for a particular sum, Judge B would report the inquirer to the attorney grievance committee. Once it became clear the financial arrangement proposed by Judge B would not take place, the trial resumed. After the jury was charged and released for deliberation, Judge B summarized their off-the-record conversation on the record, and said he/she would be reporting the inquirer to the grievance committee because the client did not resolve the matter as proposed by Judge B. The inquirer says Judge B’s ultimatum “placed me in an untenable position rendering me in a conflict with my own client,” thus “adversely affecting my relationship with this client going forward.” The inquirer asks whether, under these circumstances, he/she must report Judge B to the Commission on Judicial Conduct.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge with information indicating a “substantial likelihood” another judge has committed a “substantial violation” of the Rules Governing Judicial Conduct must take “appropriate action” (22 NYCRR 100.3[D][1]).

         As noted in Opinion 14-86 (citations omitted):


The Committee has generally advised that a judge who learns of potential misconduct by another judge must determine for him/herself whether there is a “substantial likelihood” another judge has committed a “substantial violation” of the Rules. In the Committee’s view, the judge who has observed or who, based on reliable information, learns about another judge’s conduct, is ordinarily in the best position to determine whether such conduct constitutes a “substantial violation” of the Rules. If a judge concludes there is a “substantial likelihood that another judge has committed a substantial violation” of the Rules, the judge “shall take appropriate action.” There is a wide range of “appropriate actions” depending on the circumstances, and it is, therefore, ordinarily left to the judge’s discretion to determine what action will be appropriate. However, if the judge concludes the misconduct calls into question another judge’s fitness to continue in office, then “the only appropriate action” is to report the other judge to the Commission on Judicial Conduct.

         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]). 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 (see e.g. Opinions 15-124; 10-175). 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 Judge B made his/her remarks directly to the inquiring judge.

         As for the “substantial violation” prong, Judge B’s words and actions, as described in the inquiry and the attached transcript, create an impression that Judge B tried to use an attorney’s alleged ethical violation as leverage to force his/her client to settle the case for an amount determined solely by Judge B.

         This conduct, if proved, goes to the core of Judge B’s fitness to continue in office, as it raises very serious questions about Judge B’s impartiality, fairness, and understanding of his/her disciplinary responsibilities as a judge.2 It may also raise questions about Judge B’s grasp of a judge’s proper role in facilitating settlement of a case (cf. Opinion 99-148; Matter of Mulroy, 94 NY2d 652 [2000]). At the very least, it warrants an inquiry by the Commission on Judicial Conduct.

         Accordingly, the inquirer must report Judge B’s conduct to the Commission.


         1 The alleged violation took place in open court during the course of the trial. The Committee declines to describe the alleged violation of the Rules of Professional Conduct, or the inquirer’s explanation for his/her conduct; these issues must be raised and addressed, if at all, by an agency vested with authority in such matters.

         2 If a judge has an ethical obligation to report an attorney, he/she must not permit the attorney or his/her client to “purchase” the judge’s silence.