THIS OPINION HAS BEEN HEAVILY EDITED
IN ORDER TO COMPLY WITH S.J.C. RULE 3:11 (3)
You have asked our advice concerning the applicability of Canon 3(B)(3) to the fact situation detailed in your inquiry. In essence, the facts were these: a colleague, Judge A, told you that he/she had been talking with Judge B, a joint colleague. Judge A told you that Judge B said that a lawyer whom you understand to be Judge B's friend had expressed to Judge B certain preferences the lawyer had regarding the handling of one of the lawyer's cases then pending before a judge other than Judge B. For reasons you have explained in your letter, you believe that Judge B took action consistent with the lawyer's request although Judge B also told Judge A of two other circumstances that may have played a role in the action you believe Judge B took. Judge A also told you that he/she had heard the substance of the story about Judge B's interaction with the lawyer from sources other than Judge B.
You have inquired about any obligation you may have to report the information Judge A provided to you.
Canon 3(B)(3) provides:
"If a judge shall become aware of unprofessional conduct by a judge or a lawyer
"(a) he shall in the instance of a judge report his knowledge to the Chief Justices of this court and of the court of which the judge in question is a member, and
"(b) in the instance of a lawyer, he shall initiate appropriate investigative or disciplinary measures."
The current Code of Judicial Conduct does not explicitly state how much knowledge of a violation a judge must have to trigger the reporting requirement of Canon 3(B)(3), but this Committee has previously dealt with that issue in our CJE Opinion No. 98-11. We stated:
"We believe first that the Canon does not require the judge to hold a hearing and make a definitive decision that a violation has occurred before the reporting requirement is triggered. Those responsibilities belong to the disciplinary system. We believe that the requirement is triggered when the judge has sufficient information to conclude that a substantial issue has been raised that a violation has occurred."
After that Opinion was issued, the Supreme Judicial Court, on October 27, 1999, amended the Comments to the Massachusetts Rules of Professional Conduct (MRPC) for lawyers to deal with the quantum of evidence required to trigger the lawyers' reporting requirement. Rule 8.3 of the MRPC mandates reporting when a lawyer "has knowledge" that another lawyer has committed certain violations of the MRPC. In interpreting the "has knowledge of a violation" requirement, which seems to require more certainty than the "becomes aware of unprofessional conduct" language of Canon 3(B)(3), the amended Comments to Rule 8.3 of the MRPC now provide:
"A lawyer has knowledge of a violation when he or she possesses supporting evidence such that a reasonable lawyer under the circumstances would form a firm opinion that the conduct in question had more likely occurred than not."
Finally, the proposed draft of the new Code of Judicial Conduct provides in Canon 3D(1):
"A judge having knowledge of facts indicating a substantial likelihood that another judge has committed a violation of the Code that raises a significant question about that judge's honesty, integrity, trustworthiness, or fitness for judicial office shall inform the Chief Justice of this court and of that judge's court. A judge having knowledge of facts indicating a substantial likelihood that another judge has committed a violation of the Code that does not raise a significant question of that judge's honesty, integrity, trustworthiness, or fitness for judicial office shall take appropriate action."
While our Opinion 98-11, the lawyers' rules, and the proposed new Code of Judicial Conduct speak of the quantum of knowledge that triggers a reporting requirement in different terms, all agree that certainty is not required and that some form of likelihood is sufficient. In interpreting the provisions of Canon 3(B)(3) of the current Code of Judicial Conduct, we therefore adhere to the advice we gave in Opinion 98-11 that "the requirement is triggered when the judge has sufficient information to conclude that a substantial issue has been raised that a violation has occurred." We state no view on the standards that would apply if the proposed new Code is adopted.
The question then is whether the fact situation you report meets that standard. While we do not have a report of the whole conversation between Judges A and B, what we do have is a report to you from Judge A that Judge B told him/her of three factors underlying certain action you believe he/she took. Two of them, as set forth in your letter, seem quite trivial. The third relates to a specific request from a lawyer friend of Judge B's.
As the Commentary to Section 3D of the proposed Code of Judicial Conduct states, "Judges are required . . . to participate actively in maintaining and preserving the integrity of the judicial system. The rule is necessary because judges make up a significant group that may have information about colleagues' misconduct. For this reason, judges have an opportunity and a special duty to protect the public from the consequences of serious misconduct and the potential harmful results of other violations of the Code." There may be a good explanation for what happened. But you have been given information by Judge A that Judge B and other sources gave him/her information suggesting that an ex parte request from a lawyer with a close connection to Judge B was the reason, or a reason, for the action. We therefore believe that, in the words of Opinion 98-11, you have "sufficient information to conclude that a substantial issue has been raised that a violation has occurred." The issue in our view involves a combination of Canons 2(A), 2(B), and 3(A)(4).
Taking action with respect to a pending case in response to a friend's request would in our view violate the following Canons: Canon 2(A)'s requirement that a judge "conduct himself . . . in a manner that promotes public confidence in the integrity and impartiality of the judiciary"; Canon 2(B)'s requirement that a judge "not allow his family, social, or other relationships to influence his judicial conduct or judgment. He should not lend the prestige of his office to advance the private interests of others; nor should he convey . . . the impression that [others] are in a special position to influence him"; and Canon 3(A)(4)'s requirement that "A judge . . . should not permit private interviews, arguments or communications designed to influence his judicial action, where interests to be affected thereby are not represented before him, except in cases where provision is made by law for ex parte application."
You have also asked whether you have sufficient information to trigger the reporting requirement with respect to the attorney. While Canon 3(B)(3)(b) speaks of the judge's awareness of "professional misconduct" by a lawyer, we note that the Supreme Judicial Court in Rule 8.3 of the MRPC has recently particularized the kind of misconduct that triggers mandatory reporting by lawyers with respect to other lawyers. We believe that specification should inform the mandatory requirement on judges to report lawyer misconduct. Thus the kind of misconduct requiring report would be such that raises "a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." The 1999 Comments to that Rule speak of misconduct "that, if proven and without regard to mitigation, would likely result in an order of suspension or disbarment, including misconduct that would constitute a 'serious crime' as defined in S.J.C. Rule 4:01, § 12(3)." The Comments also speak of "a measure of judgment" being required in complying with the Rule. In the circumstances of your inquiry, if we are correct in our view that on the facts you relate, you are required to report Judge B, then in our view, the matter should be regarded as sufficiently serious to require a report of the attorney to Bar Counsel's Office of the Board of Bar Overseers. The issue in our view involves Rule 3.5(a) and (b) and Rule 8.4(f) of the MRPC.
We have not addressed the issue whether Judge A also has a mandatory reporting obligation because this Committee's Rules provide that we "will not render opinions . . . upon questions relating to the conduct of persons other than the requesting judge." However, any report that you file may raise a question about Judge A's reporting obligation. It seems advisable therefore that you inform Judge A of any report that you may make.