Opinion: 97-84

October 16, 1997

Digest:  A judge must make the determination whether conduct of another judge, including that of an Administrative Judge, constitutes a "substantial violation" of the Rules Governing Judicial Conduct.

Rule:  22 NYCRR 100.3(D)(1);
           Opinions 93-71 (Vol. XI),
           93-14 (Vol. XI); 92-42 (Vol. IX),
           90-13 (Vol. V).


            A judge seeks advice as to whether there is an obligation to report that the local Administrative Judge wrote a memorandum to the judge based on a letter written to the Administrative Judge by one of the parties in a matrimonial action pending before the inquirer. In that letter, the party informed the Administrative Judge that a motion to appoint a receiver to execute a contract to sell the marital residence had been pending for more than three months, and that an order to show cause to permit the sale of the marital residence was also pending. Without such an order, the house would be sold at a scheduled foreclosure sale three weeks hence. The letter was dated June 16, 1997, and the next day the Administrative Judge sent a memorandum to the inquirer forwarding the letter and stating "Please advise me why this motion has not been decided in thirty (30) days. I suggest you appoint a receiver so the assets can be protected."

            The inquiring judge states that a hearing has been scheduled on the motion," at which time the attorneys for the parties will be advised of the ex-parte communication by the Administrative Judge..." Further, the judge states that "I have no reason to believe that the enclosed memo was written for any improper purpose ..." but, nonetheless, asks "advice on whether the undersigned has a duty to report the ex-parte communication and suggested determination of the motion."

            Prior to January 1, 1996, the duty of a judge concerning possible misconduct by another judge or an attorney was governed by section 100.3(b)(3) of the Rules Governing Judicial Conduct, which stated:

(3) A judge shall take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which the judge may become aware.

            In a series of opinions interpreting that provision, the Committee concluded that any requirement to report "unprofessional conduct" of a judge to the State Commission on Judicial Conduct or of a lawyer to the appropriate attorneys' disciplinary committee, is dependent upon whether the judge concludes that the purported violation of judicial or professional ethics was "substantial." It is only in the event that the claimed violation was "substantial" that the obligation to proceed further comes into play. Further, the determination of whether the test of substantiality has been met is for the judge to make. As stated in Opinion 92-42 (Vol. IX):

    As stated in prior opinions of the Advisory Committee on Judicial Ethics, a judge must determine whether the specific conduct at issue likely constitutes a "substantial" violation of professional or judicial ethics. If it does, he or she should report the conduct; if it does not, there is no ethical obligation to report, and the decision is at the judge's discretion. Conduct which is improper but not substantial or misconduct, thus not requiring reporting to the Commission on Judicial Conduct, still appropriately may be reported to the administrative judge. Advisory Committee on Judicial Ethics Opinion 91-36 (Vol. VII).
    If the inquiring judge believes, on all the facts, that a violation of the rules occurred that was insubstantial or merely technical, the judge has the discretion whether or not to report the violation to the Commission on Judicial Conduct. See Advisory Committee on Judicial Ethics, Opinions 89-54 (Vol. III), 89-74 (Vol. IV), 89-75 (Vol. IV), 91-36 (Vol. VII) and 91-114 (Vol. VIII).

            See also Opinion 93-14 (Vol. XI).

            The revised Rules Governing Judicial Conduct, effective January 1, 1996, adopted the following language with respect to the obligation of a judge in this regard. (22 NYCRR 100.3[D][1]):

(1) A judge who receives information indicating a substantial likelihood that another judge has committed a substantial violation of this Part shall take appropriate action.

            Thus, the revised rule, which governs the inquiry before the Committee, in effect, codifies the test of substantiality as enunciated by the Committee in its opinions interpreting the prior rule. That is, as stated in Opinion 92-42 (Vol. IX), if the judge believes that a "violation of the rules occurred that was insubstantial or merely technical", the judge has discretion whether to proceed further. It is only if the judge makes the determination that there is a substantial question of fitness that the rule imposes any obligation to proceed. And as this Committee has previously discussed with respect to the prior rule (Opinions 93-71(Vol. XI), 92-42 (Vol. IX), 90-13 (Vol. V)), the Committee, as a matter of general practice, cannot serve as a screening body with respect to particular facts that are alleged to show a "substantial violation" of the Rules. The inquiring judge must make that determination for himself or herself.

            Accordingly, if the conclusion reached by the inquiring judge is that what occurred in this matter constituted a substantial violation of the Rules, the judge is obligated to take appropriate action. If, on the other hand, the judge concludes that under all the circumstances, what occurred was insubstantial or merely a technical violation of the Rules, the matter is left to the judge's discretion.