2010-10 (May 6, 2010)
Reporting Misconduct; Canons 1, 2 & 3

Issue: Does a Judicial Official have a duty to report the possible misconduct of another judge?

The underlying facts of the inquiry are as follows: Judicial Official #1 (“JO #1”) reports to Judicial Official #2 (“JO #2”) that JO #1 learned from a reliable and trustworthy attorney that Judicial Official #3 (“JO #3”) acted in a manner that may have violated the Code of Judicial Conduct. In particular, the attorney reported to JO #1 that JO #3 attended a tape recorded meeting with JO #3’s spouse, who is an attorney, the spouse’s client, and a consulting state agency. The purpose of the meeting was to discuss voluntary custody issues. JO #1 did not listen to the recording. According to the information conveyed to JO #2 by JO #1, JO #3 can be clearly heard on the tape recording stating that JO #3 is the spouse of the attorney who is representing a client at the meeting. It was also reported that JO #3 “may have said something else at the meeting.”

The inquiring Judicial Official in this case, JO #2, states that it is "highly foreseeable" that the representative from the state agency knew that JO #3 was, in fact, a judicial official. JO #3 was subpoenaed to a subsequent court proceeding that was related to the recorded meeting, although the case settled and JO #3 did not need to testify. JO #2 has supervisory and administrative responsibilities over both JO #1 and JO #3. JO #2 indicates that s/he has not listened to the tape recording of the meeting and prefers not to undertake measures to investigate the matter.

The inquiring Judicial Official asks the following: (1) does JO #2, who has administrative responsibilities, have a duty to report JO #3’s conduct to a disciplinary authority, and (2) does JO #1 have a duty to report JO #3’s conduct
to a disciplinary authority? In reviewing this case, JO #2 asks this Committee to limit its inquiry to the “duty to report” issue.

Response: Based upon the information provided, the Committee unanimously determined that, while there is no specific requirement under Canon 3(b)(3) to report JO #3’s conduct to a disciplinary authority, both JO #1 and JO #2 have a duty under that Canon to “take or initiate appropriate disciplinary measures” against JO #3 if, based on the quality of the information they receive, they believe that JO #3 acted unprofessionally and in violation of the Code of Judicial Conduct. The appropriate disciplinary measures to take depend on the seriousness of the conduct and the circumstances involved. Appropriate disciplinary measures may include, but not be limited to, communicating directly with the judicial official who may have violated the Code, communicating with a supervising judge, or reporting the suspected violation to the Judicial Review Council. The Committee agreed that under the factual circumstances here JO #1 took appropriate measures by reporting the alleged misconduct to his/her supervisor and, as a result, has no further duty to report. With respect to JO #2, the Committee concluded that JO #2 has discretion to decide whether to take or initiate disciplinary measures, as noted above, including reporting to the appropriate disciplinary authority. If, after evaluating the quality of the information received, JO #2 is satisfied that there is a sufficient, credible factual basis to conclude that JO #3's conduct constitutes a substantial violation of the Code, JO #2 has a duty to take or initiate disciplinary measures. If, however, JO #2 decides otherwise, no such duty exists. In that latter event, however, if the information that JO #2 has is sufficient to warrant further reasonable investigation with respect to obvious and readily available sources, JO #2 should undertake such reasonable investigation in order to clarify the situation.