Opinion 20-191/20-192


December 10, 2020


Digest:       Where a judge hears conflicting reports about another judge’s possible comments at a meeting, but has no personal knowledge of these comments and is unable to conclude there is a substantial likelihood that the other judge said anything improper, they have no obligation to take any action.


Rules:        22 NYCRR 100.2; 100.2(A); 100.3(B)(4); 100.3(D)(1); Opinions 20-15; 18-74; 15-189; 15-138/15-144/15-166.


         A town justice and a supervising judge each write about their ethical obligations concerning another town justice (Judge B). The inquiring town justice recently attended a meeting with multiple town employees and officials present, including Judge B and a court clerk. The meeting became loud and chaotic, with people coming and going, and many “side conversations.” During a discussion of court-related safety and security issues, tempers flared. After the meeting, the inquiring justice received complaints that Judge B and the court clerk allegedly referred to certain litigants using certain common phrases that some attendees understood in a derogatory manner, but are also part of ordinary non-derogatory idiomatic phrases.1 Although the inquiring justice did not hear the alleged remarks, they spoke to Judge B, the court clerk, and other attendees to try to determine what had taken place. The results of this investigation were inconclusive, and the inquiring justice was unable to determine what was said or in what context. Judge B and the court clerk denied making any derogatory remarks, and the inquiring justice believes that, if Judge B uttered the words in question, it was part of an idiomatic expression and not intended to be derogatory in nature. In an abundance of caution, the inquiring justice nonetheless met with the entire court staff and Judge B to discuss “the need to avoid such an incident in the future,” focusing on the obligation and responsibility of judges and court staff to “be particularly sensitive and cautious as to what we say and how we say it in order to prevent any misconception or misunderstanding of the words used or the message we are trying to convey” in order to maintain public confidence in the court’s fairness and impartiality. The justice asks if they must do anything further on these facts.

         The supervising judge was not present for the meeting, but was assigned to investigate the matter based on similar complaints about Judge B’s alleged remarks. The supervising judge independently interviewed multiple attendees, but here, too, the results were inconclusive. Some attendees heard the words and thought they were used in a derogatory way; others heard them and thought they were spoken in a neutral, non-offensive way; and others did not hear those words uttered by anyone. Judge B denied saying anything offensive. Accordingly, the supervising judge has been likewise unable to reach a conclusion about whether or not Judge B uttered the words in question. However, based on the investigation and a decades-long knowledge of Judge B, the supervising judge is certain that Judge B would not have meant these words in a derogatory manner and has no concerns about Judge B’s fitness for judicial office. The supervising judge plans to notify the town board of the results of the investigation and to send Judge B “a counseling memo reminding [Judge B] of several of the rules of the Chief Administrative Judge that could be implicated” if the allegations were true. The supervising judge asks if this will be sufficient, or if it is mandatory to 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 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 described in Opinion 18-74 (citations and paragraph break omitted):

The inquiring judge is ordinarily in the best position to decide if there is a “substantial likelihood” another judge has committed a “substantial violation” of the Rules, “given the context in which the conduct occurs.” If he/she concludes either of these two elements is missing no action is required. As we have previously noted, the Committee “cannot judge the credibility of conflicting allegations and is not empowered to do so.”


         Here, the two inquirers independently investigated complaints about Judge B’s alleged remarks. Neither had personal knowledge of the remarks, but undertook to interview both Judge B and multiple other attendees. They both received conflicting information about what Judge B said as well as conflicting interpretations of those remarks. Judge B steadfastly denied making any disparaging remarks, and both inquirers found that denial credible and consistent with their personal knowledge of Judge B. Significantly, the alleged remarks did not include any reference, derogatory or otherwise, to the “age, race, creed, color, sex, sexual orientation, gender identity, gender expression, religion, national origin, disability, marital status or socioeconomic status” of any court users (cf. 22 NYCRR 100.3[B][4]). Rather, the words allegedly uttered are, in themselves, capable of being used in a non-derogatory manner, including in common, inoffensive idiomatic expressions.

         On these facts, the inquiring judges have full discretion to determine whether or not the two-prong test is met. As it appears they have both concluded they have not received information indicating a “substantial likelihood” of a substantial violation by Judge B, they need not take any action whatsoever (see Opinions 15-189 [no obligation where “substantial likelihood” prong is not met]; 15-138/15-144/15-166). Accordingly, they retain full discretion to act, or not act, in response to the information received.

         Here, neither judge wishes to report Judge B to the Commission on Judicial Conduct, and neither is obligated to on these facts. To the extent the supervising judge wishes to send Judge B a counseling memo or take any other measures in their supervisory capacity, they of course have full discretion to do so.

         Finally, as it appears that the inquiring town justice may have received complaints about the court clerk’s alleged remarks, we note that the justice has already counseled the court clerk. Section 100.3(D) does not, on its face, require judges to take disciplinary action concerning individuals who are not lawyers or judges (see Opinion 20-15 [citation omitted]). Nothing described here implicates the extraordinary circumstances where apparent misconduct by court personnel may “undermine public confidence in the integrity and impartiality of the judicial system itself” and thus may require some further action (id. [citations omitted]).


1 The words allegedly used did not refer to or invoke the “age, race, creed, color, sex, sexual orientation, gender identity, gender expression, religion, national origin, disability, marital status or socioeconomic status” of any court user (cf. 22 NYCRR 100.3[B][4]).