January 2001, pg. 8. JUDICIAL ETHICS.

Maine Bar Journal

2001.

January 2001, pg. 8.

JUDICIAL ETHICS

Maine Bar Journal January 2001 JUDICIAL ETHICS opinions of the judicial ethics committee Advisory Opinion No. 01-1

Issued: January 11, 2001

Issue: Does the Maine Code of Judicial Conduct require a trial judge to report evidence of criminal conduct, revealed during the course of a trial, to an appropriate investigating or prosecuting authority?

Discussion: We conclude that beyond the specific reporting requirements set out in the Maine Code of Judicial Conduct, the Code does not require a trial judge to report criminal activity disclosed during the course of a trial over which that judge presides.

The Code contains several provisions that address a judge's disciplinary responsibilities when the judge becomes aware of specific types of improper conduct. Canon 3D(1) encourages a judge to take "appropriate action" upon learning of a "substantial likelihood" that another judge has violated the Code. The same provision obligates the judge to inform the Committee on Judicial Disability and Responsibility if the offending judge's infraction raises a substantial question of that judge's "fitness for office."(Fn1) Similarly, under Canon 3D(2), a judge should take "appropriate action" if the judge learns that an attorney has violated the Maine Bar Rules; and that provision requires a judge to notify the Board of Overseers of the Bar if the violation "raises a substantial question as to the lawyer's honesty, trustworthiness or fitness as a lawyer." If the trial process reveals the commission of criminal activity that falls within the scope of either of those provisions, then, of course, the judge would be required to respond as the appropriate canon directs.

These two provisions stand alone in describing circumstances where a judge has an ethical obligation to report or otherwise respond to untoward conduct. Thus, the Code stops short of requiring that a judge take action in response to other information, such as the evidentiary disclosure of criminal conduct on the part of someone other than an attorney or judge. Because the provisions of the Code specifically identify those circumstances where a judge has some form of responsibility toward disciplinary and enforcement bodies, and because those requirements do not extend to law enforcement agencies, the Committee concludes that as a general matter, a judge is not required to report criminal activity disclosed during the course of a trial over which that judge presides unless that criminal conduct also falls within the scope of Canon 3(D)(1) or (2).

In construing provisions identical to the ones at issue here, the New York Advisory Committee on Judicial Ethics reached the same conclusion. See N.Y. Jud. Adv. Op. 88-85, 88-103 (Dec. 8, 1988). In two separate proceedings, a witness acknowledged failing to report taxable income, and a physician admitted altering medical records. The New York committee observed that...