October 3, 2018
This responds to your inquiry (18-112) asking if you have any disciplinary obligations on learning another judge presides in matters involving a lawyer with whom he/she is friendly and formerly shared office space.
The Committee previously advised that a judge who learns of potential misconduct by another judge must decide for him/herself if the information received meets the “substantial likelihood” threshold and, if so, whether it substantially violates the Rules Governing Judicial Conduct (see Opinions 10-14; 98-95). If both prongs are met, the judge must take some “appropriate action,” which is likewise ordinarily left to the judge’s discretion.
We have previously noted that interpersonal relations are “varied, fact-dependent, and unique to the individuals involved” and therefore we can provide only general guidelines to assist judges who “ultimately must determine the nature of their own specific relations with particular attorneys and their resulting ethical obligations...” (Opinion 12-125).
In summary, your judicial colleague is in the best position to determine the type of relationship and whether disclosure of the relationship would suffice, or whether disqualification, subject to remittal, is appropriate. You have no obligation to independently investigate the matters in question (see generally Opinions 13-71 and 07-82).
Therefore, a decision whether to report this conduct is within your sound discretion and there is no duty to report.
Enclosed, for your convenience, are Opinions 13-71; 12-125; 10-14; 07-82; and 98-95 for your review, which address this issue.
Very truly yours,
George D. Marlow, Assoc Justice
Appellate Div., First Dept. (Ret)
Hon. Margaret T. Walsh
Family Court Judge
Acting Justice, Supreme Court