Opinion 25-112
September 10, 2025
Digest: On the facts presented, it is within the administrative judge’s discretion to determine whether a treatment court judge’s actions constitute a “substantial violation” of the Rules Governing Judicial Conduct and, if so, what action is appropriate under the circumstances.
Rules: Judiciary Law § 212(2)(l)(iv); 22 NYCRR 100.2; 100.2(A); 100.3(B)(6); 100.3(D)(1); Opinions 24-117; 23-62/23-63/23-111; 21-02; 18-66; 18-45; 08-198.
Opinion:
An administrative judge observed a court session in which a treatment court judge (Judge B) remanded two treatment court participants into custody without defense counsel or a prosecutor present. In each instance, Judge B “sua sponte decided on the sanction to be imposed for certain behaviors and immediately remanded the defendant.” The first defendant/participant had tested positive for illegal substances but “disagreed with the test result.” The participant repeatedly denied consumption of “anything which could have caused . . . a positive test” and said that their attorney instructed them to “just be honest with the court” about this. Judge B remanded the participant for one week for “dishonesty.” The second defendant/participant “admitted to associating with someone whom they had been directed to avoid” and “appeared remorseful.” With no colloquy as to whether the attorney had been advised of the behavior or the potential adverse consequences, Judge B remanded the participant.
When the inquiring judge questioned the remands, Judge B insisted it was routinely permissible under the treatment court contract because the participants waived their right to counsel and were aware that these behaviors could result in remand. The inquiring judge disagreed and advised Judge B about Opinion 24-117, in which we addressed whether a judge may conduct treatment court proceedings in the absence of a prosecutor and/or defense counsel. As summarized in the digest (id.):
Provided no adverse action is contemplated against the treatment participant and both the prosecutor and defense counsel are given notice and a reasonable opportunity to participate, a judge may conduct treatment court sessions with only the participant present. When engaging in discussions with a treatment court participant in the absence of counsel, the judge may discuss the participant’s progress and other matters pertaining to treatment court, without discussing the underlying criminal case. If the judge believes that matters raised in these discussions could potentially trigger adverse consequences, the judge should ensure that defense counsel is present before addressing them.
Here, unlike in Opinion 24-117, we have details about the treatment court contract executed by the participants and their counsel. As with many such contracts, it contains provisions such as waiver of the participant’s right to a speedy trial, consent to random drug testing, and consent to ex parte communication between the participant, the judge, court staff, and treatment providers. However, these participants also executed a lengthy ex parte communication waiver which includes the following language (emphasis added):
I understand that I do have a right to have my attorney present at all court appearances and treatment court staffing (and it is in fact expected by the Court). However, should my attorney not appear at any or all scheduled dates, it will be deemed to be a waiver of my right, and I consent to the proceedings continuing in their absence. There is no need for a separate waiver each time my attorney chooses not to appear. If at any time I wish to have my attorney present, or change my attorney of record, I will notify the Court immediately. I also understand that incarceration may be considered until such time as my attorney may appear.
We understand from the inquiring judge that, while there is currently no standard statewide treatment court contract, the language we have placed in bold above is highly unusual.
The inquiring judge has already counseled Judge B and provided a copy of Opinion 24-117 to Judge B’s supervising judge, but asks if it is necessary to take any further action with respect to Judge B.
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]). A judge must “accord to every person who has a legal interest in a proceeding . . . the right to be heard according to law” (22 NYCRR 100.3[B][6]). If a judge receives information indicating a “substantial likelihood” that another judge has committed a “substantial violation” of the Rules Governing Judicial Conduct such judge must take “appropriate action” (22 NYCRR 100.3[D][1]).
Applicable Standard
The novel threshold question presented here is whether the inquiring judge’s personal observation of Judge B’s apparent non-compliance with one of our opinions — combined with Judge B’s response which essentially admitted similar conduct on numerous other occasions — automatically satisfies the two-prong test and obviates any further need for analysis.
While it is not determinative, we note that we have not required “automatic” reporting of an attorney for non-compliance with a bar association ethics opinion. Rather, where a judge is aware that an attorney “does not comply with” a bar association ethics opinion “concerning attorney conflicts of interest,” we advised that the judge “must determine” if the two-prong test is met (Opinion 08-198). Only if the judge concludes the two-prong test is satisfied is there a requirement to take “appropriate action” (id.).
Unlike bar association opinions, our advisory opinions are not merely “persuasive and helpful to courts in their reasoning and analysis” (id.); they have a special status under Judiciary Law § 212(2)(l)(iv):
Actions of any judge or justice of the uniform [sic] court system taken in accordance with findings or recommendations contained in an advisory opinion issued by the panel shall be presumed proper for the purposes of any subsequent investigation by the state commission on judicial conduct.
Still, the fact that compliance with our written opinions warrants a statutory presumption of proper conduct does not necessarily mean that every instance of apparent non-compliance automatically warrants a disciplinary investigation. Instead, a judge who learns of another judge’s apparent non-compliance with one of our advisory opinions should apply the usual two-prong test under Section 100.3(D)(1). We thus turn to Opinion 18-66 (citations omitted) for a quick summary of the applicable principles:
A judge is not required to conduct an investigation of 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 the judge concludes that either of these two elements is missing, the judge 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.
Analysis
Here, the “substantial likelihood” prong is clearly met, as the inquiring judge has direct personal knowledge of the alleged misconduct, both through personal observation and from Judge B’s admissions.
It is the “substantial violation” prong which gives us pause. As noted above, unlike in Opinion 24-117, we have specific details about the unusual contract provision which is in effect in Judge B’s treatment court. Specifically, as part of their consent to ex parte communication, those defendant/participants expressly agree that “incarceration may be considered” in defense counsel’s absence. In our view, that provision renders the propriety of Judge B’s conduct largely a legal question. As previously noted, we “cannot address legal questions, such as whether or when a right to counsel may attach or be waived in the treatment court context” (Opinion 24-117). We likewise cannot resolve any disputes about the proper effect or interpretation of this contractual provision or otherwise comment on “conflicting legal determinations” (Opinion 18-45). Indeed, as a general matter, “a judge who acts in reliance on a good-faith legal interpretation necessarily acts ethically, even if the judge’s legal interpretation is later determined to be incorrect” (Opinion 21-02).
Under these circumstances, we must leave it to the sole discretion of the inquiring administrative judge as to whether the “substantial violation” prong is met and, if so, what action is appropriate under the circumstances. Thus, our advice in Opinion 23-62/23-63/23-111 applies here with only minor alterations:
If the administrative judge concludes [the substantial violation prong] is not met, the judge need not take any action pursuant to Section 100.3(D)(1) on these facts.
However, if the administrative judge concludes the two-prong test is satisfied, he/she must take appropriate action. We note that the inquiring judge has a wide range of discretionary administrative tools at their disposal which may help minimize any appearance of impropriety, including (without limitation) counseling Judge B . . . . Moreover, in determining what action is appropriate under the circumstances, the judge may consider Judge B’s motivations and receptiveness to guidance about their ethical responsibilities going forward.
Of course, if the inquiring judge concludes that there is a substantial likelihood that Judge B has engaged in a “substantial violation” of the Rules, and that the misconduct is so egregious that it seriously calls into question Judge B’s fitness to continue in office, then the inquiring judge must report the conduct to the Commission on Judicial Conduct. On the facts presented, this and all other determinations concerning Judge B’s conduct are left to the discretion of the inquiring administrative judge.
To avoid any possible doubt, we further note that, even if the inquiring judge concludes that the two-prong test is met and “appropriate action” is required, it is still within his/her discretion to determine that the steps he/she has already taken — counseling Judge B and providing a copy of Opinion 24-117 — are sufficient under the circumstances.