In most instances, a judge has discretion in determining what to do about another judge's alleged misconduct under 22 NYCRR 100.3(D)(1).
However, in some exceptional circumstances the Advisory Committee has required reporting to the Commission on Judicial Conduct or provided other directed guidance.
Important Note: All charts and comments reflect staff counsel's understanding and analysis of selected opinions, and do not necessarily reflect the Advisory Committee’s views as expressed in its full, published opinions. Only a written opinion from the Advisory Committee on Judicial Ethics can provide the statutory protection of Judiciary Law § 212(2)(l)(iv). |
General Reminders:
- Self-reporting is not required: Opinions 09-113; 17-156; 08-209
- Reporting is not required if the specific misconduct has already been reported: Opinion 14-162(A)
- Judge need not investigate likelihood or seriousness of misconduct.
- Where reporting is required, other judge’s resignation does not necessarily excuse reporting the apparent misconduct: Opinion 20-207 (ticket-fixing).
NAVIGATION: Chart 1 - Reporting is Mandatory | Chart 2 - "Contingent" Mandatory Reporting | Chart 3 - Reporting to AJ | Chart 4 - Need Not Report (Substantial Likelihood Prong Unsatisfied) | Chart 5 - Disciplinary Decisions (CJC)
CHART 1 - REPORTING IS MANDATORY
In these opinions, each inquirer clearly had information indicating a substantial likelihood of a substantial violation of the Rules Governing Judicial Conduct, based on the facts described.
The sole question for the Advisory Committee was thus whether the other judge’s misconduct, if true, clearly called into question his/her fitness to continue in office and, therefore, at the very least, warranted an investigation by the Commission.
Opinion | Core Misconduct | Possibly Key Concerns or Factors Likely to Impair Public Confidence in Judiciary |
|---|---|---|
Judge used strawman to represent clients in cases originating in his/her own court, and arranged for those cases to be assigned to himself/herself. | Deception; | |
Judge likely to preside in forthcoming criminal case responded to law enforcement agency's arrest announcement by praising them for solving the crime. | Lack of Impartiality; | |
Judge asked for a lower fine for an acquaintance than the prosecutor is recommending. | Abuse of Judicial Prestige; | |
Judge with a public disciplinary history took steps to have an acquaintance’s matter reassigned to him/herself. | Abuse of Judicial Prestige; | |
Judge submitted an impermissible character reference in support of a pistol permit application and, after the application was denied, a two-page letter urging reconsideration. | Abuse of Judicial Prestige; | |
After appellate court reversed Judge A’s dismissal of a case and reinstated the complaint for trial before another judge, Judge A sent letter to the parties, copying the appellate court, commenting on both the facts and the law, attempting to justify the original decision, and criticizing the appellate decision. | Inability to Grasp Proper Role of Judge; | |
Trial judge failed to perform judicial duties necessary for appeal, to the parties’ detriment, even after direct order from appellate judge, and expressed overt disdain for the time-sensitive nature of such duties. | Willful Disregard of Judicial Duties; | |
Judge initiated discussion of inquiring judge’s case in non-public court hallway, expressing view of how case should be decided and the interest of a particular community in the case’s outcome, and providing “facts” about the parties. | Abuse of Judicial Prestige; | |
Judge, while presiding over a case, threatened to file a disciplinary complaint against the inquirer unless the inquirer’s client settled the case for a particular sum. | Abuse of Judicial Power; | |
| Judge attempted to use judicial prestige to influence family member’s criminal case (approaching judge, ADA, and court clerk). [FN1] | Abuse of Judicial Prestige; |
| Judge attempted to use judicial prestige to influence family member’s criminal case (approaching co-judge, ADA, and court clerk). [FN2] | Abuse of Judicial Prestige; |
Judge who arraigned the defendant and signed a securing order had also signed the underlying criminal complaint. | Flagrant Disregard of Conflict Rules; | |
Judge undertook legal work in connection with a matter that originated in the judge’s court, and over which the judge previously presided at the arraignment stage. | Flagrant Disrespect for Law/Rules Limiting Practice; | |
After arraigning defendant and setting bail, judge personally posted bail using check drawn on judge’s spouse’s bank account, signed spouse’s name to secure defendant’s release, then drove defendant home. | Judicial Conduct Influenced by Personal Relationship; | |
Letter from another judge in support of an application that is pending in the inquirer’s court, under circumstances that indicate to the inquirer that the letter was not solicited by an appropriate agency. | Abuse of Judicial Prestige; | |
Judge offered to have a police officer destroy a traffic ticket issued to the inquirer’s relative. | Corruption; | |
On multiple occasions, part-time judge practiced law in the inquirer’s court (part-time judge in same county). | Invoking Judicial Prestige to Influence Case; | |
Judge drove a car recklessly while intoxicated, expressed an expectation of special consideration due to his/her current and past official status, and presided more than once while intoxicated. | Abuse of Judicial Power; | |
Judge improperly pressured lawyers to join judge’s election committee. | Abuse of Judicial Power; | |
Judge called inquirer’s court attorney asking for help in getting inquirer to disqualify him/herself so that a friend’s petition could be heard by a different judge. | Abuse of Judicial Prestige; | |
Judge participated in a political party's interviews of candidates for judicial and non-judicial offices. | Flagrant Disregard of Political Activity Limitations; | |
Judge interjected him/herself into civil lawsuit by threatening a party with possible prison time. [FN3] | Abuse of Judicial Power; |
Footnotes:
FN1 Details of 15-124: "The defendant in a criminal case ... arrived at the court with his/her parent, a part-time judge from a nearby jurisdiction. The court clerk later advised ... that a judge appeared with his/her accused child and asked to speak with the presiding judge. The ADA also stated a judge participated in the pre-trial conference with his/her defendant child and “attempted to influence a disposition.” When the case was called, the defendant’s parent said he/she is a judge and offered a Unified Court System identification card as proof. When the inquiring judge asked the defendant’s parent if he/she “was aware of the ethics of what [he/she] was doing,” the parent repeated he/she was a judge, and clarified he/she was not the defendant’s attorney." Return to Chart
FN2 Details of 15-70: "The judge appeared in your court because his/her parent/child/sibling had a pending traffic ticket. Although the judge advised you he/she was present in a purely family support role, you later learned from the prosecutor that the judge participated in a conference between his/her relative and the prosecutor. You indicate the prosecutor told you he/she felt intimidated and uncomfortable, and recounted that the judge challenged the offer he/she made to settle the case. You indicate the prosecutor also told you that the judge “slapped” a copy of the relevant statute down in front of him/her, and asked if he/she had read it. You later learned from a source you consider reliable that the judge further attempted to improperly influence his/her relative’s case." Return to Chart
FN3 Details of 90-13: "The possible judicial impropriety came to the judge's attention as a result of affidavits submitted in a civil action before the judge which alleged that another judge was threatening one party with possible prison time in connection with the civil suit. The allegation has no bearing upon the determination of the civil suit, to which the other judge is not a party. The inquiring judge has no independent knowledge of the truth or accuracy of the allegation."
CHART 2 - "CONTINGENT" MANDATORY REPORTING
Examples of opinions where the Advisory Committee provided guidance that reporting was required if the inquiring judge determined that a particular condition was met.
Opinion | Core Misconduct | Condition Making Reporting Mandatory | Condition Making Reporting Optional |
|---|---|---|---|
Judge pointed gun at defendant in courtroom several years ago. | Inquirer concludes, in his/her sole discretion, that the measures he/she has already taken are inadequate and the incident still raises serious questions about the judge’s fitness to continue in office that must be investigated by the Commission on Judicial Conduct. | Inquirer is satisfied that it was a one-time, isolated incident provoked by the other judge’s concerns about his/her personal safety, and has, in consultation with DAJ, counseled the other judge orally and in writing to impress upon him/her that this conduct must never be repeated. | |
Judge attempted to use his/her judicial status to influence the bail decision in a family member’s criminal case, but did not reveal his/her name. | Inquirer knows the other judge’s identity. | Inquirer does not know other judge’s identity. | |
Defense counsel submitted letter from judge supporting litigant’s application, addressed directly to the inquirer and identifying him/herself as a judge. | Inquirer concludes the two-prong test is met AND that the other judge was attempting to influence the outcome of the case. | Inquirer concludes either prong is not met; or inquirer does not conclude the other judge was attempting to influence the outcome of a case. | |
Grave inconsistencies at the core of a judge’s sworn testimony concerning his/her performance of judicial duties. | Inquirer concludes that the witness-judge engaged in “perjury or intentional deception.” | Inquirer “concludes the witness-judge did not deliberately testify falsely or intentionally attempt to mislead the court.” | |
Judge sexually assaulted someone and used his/her judicial office to influence the investigation so criminal charges were eventually dropped. | Inquirer, in his/her sole discretion, concludes that the “substantial likelihood” prong is met. NOTE: the inquirer had no first-hand knowledge or personal observations, but heard the allegations directly from a “first responder” who was at the scene, and believes it is true. | Inquirer, in his/her sole discretion, concludes the “substantial likelihood” prong is NOT met. | |
Judge asked clerk not to issue a bench warrant for a client represented by his law partner. | Inquirer concludes that the other lawyer-judge was improperly requesting a personal favor from the court. | Inquirer determines the violation is technical or insubstantial. |
CHART 3 - REPORTING TO AN ADMINISTRATIVE JUDGE
Examples of opinions where the Advisory Committee considered issues such as:
- Whether it is sufficient to report alleged misconduct to an administrative judge OR
- Whether it is mandatory to report alleged misconduct to an administrative judge.
Opinion | Issue | Discussion (quoted from opinion; some citations omitted) |
|---|---|---|
Part-time lawyer judge signed petition over mislabeled signature line, in matter that came before another part-time lawyer judge in the same county. | "[O]nly in clearly egregious circumstances - not present here - will we mandate reporting to disciplinary authorities. Assuming, without deciding, that the two-prong test is met here (a matter left to the judge’s discretion), we believe it is entirely within the judge’s discretion to determine what action is “appropriate” under the circumstances, bearing in mind the applicable standards set forth above. The facts set forth in the inquiry suggest that the mislabeled signature line may have been an isolated incident caused by poor law office clerical oversight. The inquiring judge took immediate, measured steps to ascertain the identity of the person who signed the petition above the erroneous label. Once the other judge’s signature was confirmed, the inquiring judge granted the petitioner’s request to withdraw the petition, which will presumably afford the law office an opportunity to arrange for a different attorney (i.e. one who is not a part-time judge) to prepare and sign the petition. The inquiring judge then took the additional step of reporting the facts to their administrative judge. On the facts presented, we conclude that the inquiring judge need not take any further action." | |
A new part-time attorney judge inappropriately continued to appear as a prosecutor. | ["O]nly in clearly egregious circumstances - not present here - will we mandate reporting to disciplinary authorities. Here, of course, the judge has already acted; the judge reported all the facts to appropriate court administrators in the judge’s jurisdiction, and was advised that the District Administrative Judge has addressed the matter. On these facts, we conclude that the inquiring judge need not take any further disciplinary action." | |
AJ/SJ displayed impatient, discourteous, and undignified behavior on the bench, made unprovoked threats to alter inquirer’s order in the case sua sponte to suit the AJ’s/SJ’s personal preferences, and repeatedly refused to consider or decide the issues before him/her. | "Under the specific circumstances presented, it appears the alleged misconduct has affected at least one court proceeding, and the judge who allegedly engaged in such misconduct is a more senior judge who has certain administrative or supervisory responsibilities. The alleged misconduct, if proven, clearly calls into question the more senior judge's fitness to continue in such supervisory or administrative capacity and, therefore, at the very least, warrants prompt intervention by the appropriate administrative judge. Therefore, as was the case in Opinions 08-99 and 08-83, the facts in the present inquiry require immediate action to protect other litigants. Only the administrative judge will be in a position to act quickly and authoritatively to determine the extent of the problem and to consider and take appropriate steps to address the root causes as well as the effects of the alleged misconduct." | |
Judge drove recklessly while intoxicated, expressed expectation of special consideration due to their current and past official status, and presided while intoxicated. | "Viewing all these alleged circumstances together, the Committee further concludes that the inquiring judge must take an additional step beyond reporting Judge B to the Commission. Because the Commission’s disciplinary process ordinarily takes significant time, and in light of the obvious risks that Judge B’s alleged conduct would pose during the pendency of that process, the inquirer also should notify his/her administrative judge of this situation so that other appropriate action may be considered and taken in the interim." | |
AJ learned a non-lawyer judge is using the court to collect debts. | "[T]here appears to have been no improper motivation by the part-time Town Judge, who is not a lawyer, and who was merely continuing in good faith the prior administrative practice of the court in effect before the part-time judge became a judge. As stated above, the part-time judge immediately ceased the practice when informed that it was improper." |
Note: Opinions 08-99, 15-189, 20-15 and 20-16 discuss reporting troubling irregularities or misconduct by nonjudicial court personnel to an administrative judge. Of these, although 15-189 only technically calls for reporting the apparent misconduct of a former court clerk, it is virtually certain to involve disclosure of rumors concerning a former judge.
CHART 4 - NEED NOT REPORT OTHER JUDGE TO COMMISSION
Examples of opinions in which the Advisory Committee has said affirmatively reporting is not required because the substantial likelihood prong is not satisfied.
Opinion | Issue | Explanation or Nature of Uncertainty |
|---|---|---|
Inquirer receives correspondence from other judge's election opponent accusing the other judge of misconduct. | "[T]he inquiring judge has no apparent basis to draw any conclusion as to whether the allegedly “libelous” statements are true or false, made in malice or good faith, or likely to endanger anyone’s personal safety. Indeed, screen shots forwarded by a co-judge’s election opponent do not even establish reliable first-hand knowledge of the contents or authors of the posts. Nor does the inquiring judge know if the courtroom photograph falls within an established exception. As the inquiring judge lacks any first-hand knowledge of any misconduct, we conclude the judge is under no obligation to take any action, including that requested by the election opponent." | |
Another judge conducted a bail hearing and then recused to avoid "any potential appearance of impropriety." | "There could be multiple scenarios that would lend themselves to this sequence of events without any violation of the Rules. Neither we nor the inquiring judge have any first-hand knowledge of any issues that may have arisen during or after the bail hearing, nor can the inquiring judge search the other judge’s conscience to determine whether and when recusal was warranted. The inquiring judge has no duty to conduct further inquiry and need not take any action here." | |
Inquirer 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. | "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. Rather, the words allegedly uttered are, in themselves, capable of being used in a non-derogatory manner, including in common, inoffensive idiomatic expressions." | |
Co-judge had discussion with certain court personnel that left them with the impression that they were being asked to participate in deciding the case. | "[T]he inquiring judge has heard multiple reports from individuals with first-hand knowledge of the conversation at issue, including the alleged wrongdoer. The issue is whether the information he/she has received satisfies the initial threshold: is there a substantial likelihood that the co-judge has committed a substantial violation of the Rules Governing Judicial Conduct. As described in the inquiry, it does not. The inquiring judge, who knows all the individuals involved, has credited the explanations given and concludes the co-judge’s missteps were inadvertent and that he/she was not attempting to delegate his/her judicial decision-making functions." | |
Co-judge seems to lack knowledge of basic court procedures and judiciary’s proper role and function, and two recent incidents suggest possible ex parte communications and possible willingness to promote private interests of bail bondsman. | "[O]n the facts presented, the judge clearly does not know if the colleague acted improperly. On the outstanding bench warrant matter, the judge does not have any knowledge whatsoever as to what the colleague said or did during his/her absence from the court. Indeed, on these facts, the judge’s concern that the colleague may have spoken to the defendant or his/her family about the case appears as pure speculation. Similarly, nothing here suggests the colleague requested the bail agency’s marketing materials or planned to distribute them." | |
Judge called about a case before the inquirer, identifying him/herself as a judge, but call ended without any identification of the case whatsoever. | "On the facts presented, we believe that the inquiring judge acted with great propriety and restraint in the face of an unsettling and ambiguous phone call from another judge. Indeed, the Court of Appeals has previously censured a judge for “identifying himself as a Judge and inquiring about the procedures to be followed in resolving his son's case.” Here, however, the other judge never identified the case he/she was calling about, leaving the inquiring judge uncertain about the other judge’s intentions. As the inquiring judge is unsure why the other judge called, has no idea which case the other judge was referencing, and has no duty to investigate the matter, we conclude that he/she lacks sufficient information to meet the initial “substantial likelihood” threshold." | |
Co-judge is rumored to have left town before the effective date of his/her resignation, but his/her traffic tickets were disposed of during this period. | "Although it is clear the co-judge’s traffic tickets were disposed of during his/her rumored absence, the inquiring judge does not know if the co-judge personally decided and directed the disposition of each traffic ticket, or improperly delegated this authority to the court clerk. Again, the judge has no duty to investigate the matter." | |
Town Justice presided over arraignment and subsequently transferred the case due to an apparent familial relationship between the complainant and a Town Board member. | "Disqualification is not necessarily required for all relatives of a Town Board member. Inquirer does not know and need not investigate the degree of relationship or other details of the arraignment." | |
Law enforcement officer has, in the course of testifying about possible criminal activity on the part of a criminal defendant, mentioned the names of one or more attorney(s) and judge(s). | "The Committee has previously advised that a judge who learns an attorney is the subject of criminal charges, but has no personal knowledge of the circumstances underlying the charges, is not required to take any action unless he/she concludes there is a substantial likelihood the charges are true. Nor is the judge required to undertake any investigation to determine the facts. Rather, the judge may “discharge his/her disciplinary responsibilities based on the facts already known to the judge without further inquiry.” Even where an attorney chose to disclose that he/she was under indictment, the Committee concluded the judge did not have substantial knowledge of a substantial violation. Similarly, as the judge in the present inquiry does not have information indicating a substantial likelihood of any wrongdoing by the named individuals, the judge is not ethically required to take any action pursuant to his/her disciplinary obligations." | |
Judge presided in criminal case involving defense counsel who was simultaneously representing the judge before the CJC. | "Disqualification on this basis is subject to remittal. Inquirer does not know and need not investigate whether remittal took place." | |
Other judge requested that local authorities further investigate a crime that allegedly occurred in the court office. | "The Committee has previously recognized that a judge who is a crime victim in his/her official capacity “is entitled to the rights that are afforded any other crime victim,” and need not conceal his/her identity as a judge. ... The Committee has reviewed the writing at issue and believes that, although it is couched in strong language, it can be fairly interpreted as a request that local authorities further investigate and charge one or more suspects with a crime that involves court property and took place on court premises. There is no pending or impending proceeding involving the crime that allegedly took place in the judge’s court office. Moreover, although the judge expresses confidence about the identity of the suspects, the judge also frankly identifies the basis of his/her request; that is, the judge does not claim any personal knowledge of the suspects’ guilt, but instead sets forth the facts from which the judge infers their guilt. Therefore, under the circumstances presented, the Committee concludes that the judge’s request that local authorities further investigate a crime that allegedly occurred in the court office, standing alone, does not rise to the level of a “substantial likelihood” that the judge has violated the Rules Governing Judicial Conduct." |
CHART 5 - DISCIPLINARY DECISIONS (NYS Commission on Judicial Conduct)
Important Note: The Advisory Committee's sole mission is to help judges comply with the Rules Governing Judicial Conduct. It has absolutely no disciplinary or investigative functions and cannot comment on past conduct.
The following citations were found by searching the public website of the Commission on Judicial Conduct, and are offered as a courtesy in case they may be of interest. We note, however, that the rule cited in Gassman is no longer in effect.
- Former Rule 100.3(b)(3) stated: “A judge shall take or initiate appropriate disciplinary measures against a judge ... for unprofessional conduct of which the judge may become aware.”
- Current Section 100.3(D)(1) states: " A judge who receives information indicating a substantial likelihood that another judge has committed a substantial violation of this Part shall take appropriate action."
Citation | Quick Recap | Sanction | Discussion (quoted from opinion) |
|---|---|---|---|
Restino, 2002 Ann Rep of NY Commn on Jud Conduct 145 | Respondent conducted an in-chambers conference with the ADA, defense counsel, and his co-judge (Goodermote). During arguments between counsel addressed to bail, the co-judge shared his negative view of the alleged victim. The CJC concluded the co-judge “was advocating the defendant’s position for purposes of bail.” Although respondent apparently was not swayed by this advocacy, he “failed to immediately eject Judge Goodermote for his conduct and failed to report Judge Goodermote’s conduct to the Commission.” | Admonition (on two charges) | "Nor did respondent report his co-justice’s misconduct to the Commission, as required by the ethical standards. Section 100.3(D)(1) of the Rules provides that a judge “shall take appropriate action” if the judge “receives information indicating a substantial likelihood that another judge has committed a substantial violation” of the ethical rules. Difficult as it may be for a judge to report the misconduct of a fellow judge, every judge must be mindful of the responsibility to take such action when appropriate. Matter of Gassman, 1987 Ann Rep of NY Commn on Jud Conduct 89." |
Gassman, 1987 Ann Rep of NY Commn on Jud Conduct 89 | Respondent received a call from a JSC (Bayger) personally vouching for three defendants and requesting their release from jail. He realized it was another judge attempting to influence his decision, but nonetheless called the jail and delivered an order for their release. He “did not notify the arresting officer or the district attorney before changing his earlier bail decision” and “did not report the call from Judge Bayger to any administrative authority or to the Commission.” | Admonition | "Respondent considered an ex parte communication from another judge which was clearly designed and understood by respondent as an attempt to influence his decision as to bail. ... Moreover, respondent’s failure to report Judge Bayger’s blatant misconduct in seeking special consideration for his friends violated Section 100.3(b)(3) of the Rules Governing Judicial Conduct." |
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