January 14, 2021
This responds to your inquiry (20-201) asking whether you must report certain information sent to you by a third party which alleges misconduct by local law enforcement agencies and the local district attorney’s office. While the letter provides “fairly specific examples … of the objectionable conduct,” it does not identify specific defendants or cases pending before you. You indicate that you have no first-hand knowledge of the alleged misconduct nor do you recognize any specific cases as pending before you. While you believe the alleged violations, if true, appear to be “substantial,” you are unable to ascertain whether any particular attorney has violated any ethical rules or rules of professional conduct. Under these circumstances, you ask a series of questions regarding your reporting obligations of this alleged conduct to certain persons and entities:
1) Must you report the letter to the Attorney Disciplinary Committee?
2) Must you provide the letter to the district attorney and public defender?
3) May you provide the letter to the district attorney and public defender?
4) May you share the letter with the local magistrate’s association?
5) May you share the letter with your administrative judge?
The Rules Governing Judicial Conduct require a judge 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” that an attorney has committed a “substantial violation” of The Rules of Professional Conduct, the judge must take “appropriate action” (22 NYCRR 100.3[D]).
The Committee has previously advised that where a judge has no direct personal knowledge about purported misconduct of another judge or attorney, the judge has wide discretion in making the threshold determination whether there is a “substantial likelihood” of a “substantial violation” of the Rules Governing Judicial Conduct, based on all surrounding circumstances known to the judge (see 22 NYCRR 100.3[D]). In making this determination, the judge is under no duty to investigate whether the allegations are true. Moreover, we have previously advised that “mere rumor, gossip, innuendo or other ‘third hand’ information does not trigger a judge’s disciplinary obligations” (Opinion 15-138/15-144/15-166).
If the judge does not believe that the information is sufficiently reliable or credible to warrant further consideration, then the “substantial likelihood” prong is not met, and the judge has no obligation to take further action. However, if the judge concludes in his/her sole discretion that the first prong is met, then the judge must determine whether there has been a “substantial violation” of the Rules. If so, the judge must determine what action is appropriate under all the attendant circumstances. Applying these principles to question 1, you state in your inquiry that you are unable to ascertain whether any particular attorney has violated any ethical rules or rules of professional conduct. If so, you have no obligation to take any disciplinary action with respect to the letter.
While you are not required to provide copies of the letter to the district attorney or to the public defender, we have previously advised that it is within your discretion to do so (answering questions 2 and 3).
Even if a judge is not ethically required to take action pursuant to 22 NYCRR 100.3(D)(2), we have previously counseled that the judge nevertheless has wide discretion to decide whether to take any action determined to be appropriate under the circumstances. Accordingly, you may share the letter with the local magistrate’s association and your administrative judge (answering questions 4 and 5).
Enclosed, for your convenience, are Opinions 19-84; 18-170; 17-90; 16-110; 15-138/15-144/15-166 which address this issue.
Very truly yours,
Margaret T. Walsh
Supreme Court Justice
Acting Supreme Court Justice