Appropriate action

The New York code of judicial conduct provides that a “judge who receives information indicating a substantial likelihood that another judge has committed a substantial violation of [these rules] shall take appropriate action.”  (There is an analogous provision for possible attorney misconduct.)  The New York Advisory Committee on Judicial Ethic has interpreted that rule in many opinions.  In most of those opinions, it provides guidelines but does not direct a judge to report a suspected violation, leaving it to the judge’s “discretion” based on the judge’s assessment of the relevant circumstances.

However, when conduct described in an inquiry clearly calls into question another judge’s fitness to continue in office, the committee has advised the inquiring judge that he or she has an affirmative duty to report the conduct.  In New York Advisory Opinion 2015-124, the inquiring judge had asked the committee if he was required to report the following circumstances.

The defendant in a criminal case before the inquiring judge arrived at the court with his/her parent, a part-time judge from a nearby jurisdiction.  The court clerk later advised the inquiring judge 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.

The committee concluded that the inquiring judge must report the other judge’s conduct to the State Commission on Judicial Conduct, noting the judge “has information, including his/her direct observations, indicating a substantial likelihood that another judge has tried to use the prestige of judicial office to advance his/her child’s interests and improperly influence a criminal proceeding on his/her child’s behalf . . . .  On these facts, the other judge’s actions, if proved, clearly call into question his/her fitness to continue in office.”

The committee, like the committees in most states, does not disclose the name of the inquiring judge, but that inquiry corresponds to the facts in a recent case in which the Commission removed a non-lawyer judge from office for (1) attempting to influence the disposition of a traffic ticket received by his daughter and (2) sending 8 letters to the county court in an appeal from his order in a case.  In the Matter of Ayres, Determination (New York State Commission on Judicial Conduct May 4, 2017).

After his 30-year-old daughter received a traffic ticket from a state trooper for using a cell phone while operating a motor vehicle, Judge Ayres made 2 “back-channel attempts” to have the case transferred from the assigned judge, Judge Coe.  Judge Ayres believed Judge Coe could not handle the case fairly because Judge Ayres had fired Judge Coe’s wife when she was his court clerk.  First, the judge asked a court clerk to transfer the ticket to the docket of Judge Weingartner.  Then he called Judge Weingartner and asked him to handle the matter in view of his history with Judge Coe’s wife; he also attempted to provide facts about the case, but Judge Weingartner cut him off and refused his request.  The Commission found that the judge’s “requests to the court clerk and Judge Weingartner, who both knew respondent was a judge, were implicitly supported by his judicial status . . . .”

After these attempts were unsuccessful, the judge attended the pre-trial conference with his daughter and the assistant district attorney, Laura Parker.  During the conference, the judge addressed Parker “in a condescending manner, questioned whether she knew the law and was familiar with the facts, and, at one point, ‘threw’ papers on the table in her direction to underscore his argument that the ticket should be dismissed.”  After his daughter said, “My father’s a judge,” the judge stated, “Well, I wasn’t going to bring that up, but since it’s been brought up, if this ticket was in my courtroom, I’d dismiss it.”  He added that he had spoken to “several other judges” about the ticket and that they “all agreed that this should be dismissed.”

After talking to her supervisor, Parker moved to dismiss the ticket.  Judge Coe, who was surprised by the motion, did not accept it and said that he was going to adjourn the case “to give it some more thought.”  Subsequently, Parker again moved to dismiss, and Judge Coe dismissed the charge in April 2015.

The Commission decision notes that, after the pre-trial conference, Judge Coe met with Judge Weingartner to discuss what had occurred.  Judge Weingartner told Judge Coe that Judge Ayres had called him earlier and asked him to handle the ticket.  Judge Coe’s clerk also told him that Judge Ayres had asked her to transfer the ticket to Judge Weingartner.  Judge Coe sent an inquiry to the advisory committee and, after receiving the committee’s response, sent a letter to the Commission about Judge Ayres’s conduct.

Throughout the Commission’s proceedings, Judge Ayres insisted that his actions were permissible because he was acting “as a parent,” not as a judge, and was only attempting to help his daughter obtain the result that she was entitled to by law.  The Commission emphasized that “paternal instincts,” although understandable, do not “justify a departure from the standards expected of the judiciary,” agreeing with the referee’s rejection of the judge’s argument “that he had ‘absolute immunity’ to intervene as a parent on behalf of his daughter in an ongoing judicial proceeding.”  Noting that the judge had ample opportunity to reflect upon the propriety of intervening, the Commission reached the “inescapable” conclusion “that he either ignored or misunderstood his ethical obligations and intervened in the case simply because he believed that he had a better chance of getting the ticket dismissed than his daughter had on her own.”

In the second case underlying the discipline proceeding, after a defendant’s attorney filed a notice of appeal from a restitution order he entered in a larceny and disorderly conduct case, the judge sent 8 letters, 5 of which were ex parte, to the county court judge who was hearing the appeal.  The judge’s letters advised the other judge that, for example, the appeal should “be dismissed as it has not been perfected as required,” his order was “within the parameters of the law,” and the defendant’s claims were “baseless” and inconsistent with the plea agreement.  The judge also described the defense attorney’s arguments in “highly disparaging terms” (for example, “ludicrous,” “defies logic,” and “totally beyond any rational thought process”).  The judge continued writing the letters even after the county court judge sent him a letter advising him of the proper procedures and admonishing him for his “troubling” statements about the merits of the appeal.

The Commission found that the judge “abandoned his role as a neutral arbiter and became an advocate . . . .”

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In another 2015 opinion, the New York advisory committee provided more guidance regarding reporting judicial or attorney misconduct.  New York Joint Advisory Opinion 2015-138/2015-144/2015-166.  The committee explained that the rule requires a 3-prong analysis:  (1) Whether there is a “substantial likelihood” of a violation; (2) Whether the likely violation is substantial; and (3) What action is appropriate.  According to the committee, a judge is not required to investigate possible misconduct but may discharge his disciplinary responsibilities based on facts he already knows.

The committee stated that whether a judge has information indicating a substantial likelihood of a violation depends on the judge’s evaluation of the reliability and credibility of the evidence, including whether the judge has first-hand knowledge or merely “second- or third-hand reports concerning conduct that did not arise in connection with a proceeding.”  The committee emphasized that, “mere rumor, gossip, innuendo, or other ‘third-hand’ information, does not trigger a judge’s disciplinary obligations.”  The committee stated that, “[i]f, after considering all relevant, known factors, the judge believes the information received is not sufficiently reliable or credible to warrant further consideration, the judge is not ethically required to take any further action.  (As always, the judge may still, in his/her sole discretion, take some action even though he/she is not ethically required to do so.)”

In determining whether a violation is “substantial,” the committee explained, the judge should consider a wide variety of factors, including “the experience level of the . . . judge, whether the violation appears to have been inadvertent or willful, whether it appears to be part of a larger pattern of improper behavior or an isolated incident, whether it reflects adversely on the individual’s honesty, trustworthiness, and fitness as a . . . judge, and whether the violation, if it occurred as described, is likely to undermine public confidence in . . . judges if not investigated and addressed.”  The committee concluded that, “[i]f the judge is not certain that the conduct violates the applicable ethics rules, or concludes that the conduct is at most an insubstantial or a mere technical violation, he/she again need not take any action, although the judge may nonetheless do so, in his/her discretion.”

If a judge determines that those 2 prongs are satisfied, the judge must take “‘appropriate action’ . . . , as indicated by all the surrounding circumstances known to the judge at the time.”  Among the relevant circumstances, according to the committee, are whether the other judge, if confronted, “shows genuine remorse, contrition, or ignorance of a rule” and whether the other judge has a “history of unprofessional or other conduct in violation of the Rules.”  The committee advised that reporting to the Commission is not mandatory unless the conduct seriously calls into question the “judge’s honesty, trustworthiness or professional fitness, thus warranting, at the very least, an inquiry . . . .”  In another opinion, the committee described possible appropriate action in response to possible judicial misconduct, for example, dealing with the matter administratively, discussing with the other judge the possibility of a treatment program and/or making a referral to a treatment program, and counseling the other judge on the ethics of the conduct and then deciding what if anything should be done depending on the other judge’s response.  New York Advisory Opinion 2016-46.

As interpreted by the advisory committee, the New York rule is in effect very similar to the current model code provision although the language is different.  Rule 2.15 of the 2007 American Bar Association Model Code of Judicial Conduct provides:

(A) A judge having knowledge that another judge has committed a violation of this Code that raises a substantial question regarding the judge’s honesty, trustworthiness, or fitness as a judge in other respects shall inform the appropriate authority.

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

There are analogous provisions for attorney misconduct.

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