NEW YORK COUNTY LAWYERS’ ASSOCIATIONTASK FORCE ON JUDICIAL INDEPENDENCEREPORT ON THE NEW YORK STATE COMMISSION ON JUDICIAL CONDUCT

14 Vesey Street

New York, NY 10007-2992

(212) 267-6646 www.nycla.org

NEW YORK COUNTY LAWYERS’ ASSOCIATION

TASK FORCE ON JUDICIAL INDEPENDENCE

REPORT ON THE NEW YORK STATE COMMISSION

ON JUDICIAL CONDUCT

This Report was approved by the Board of Directors of the New York County

Lawyers’ Association at its regular meeting on September 14, 2009.

TABLE OF CONTENTS
Executive Summary	1
*The* *Task* *Force* on *Judicial* *Independence*	1
*The* *Subcommittee* on *the* *Commission* on *Judicial* *Conduct*	1
*Overview* of *Report*	2
*Summary* of *Recommendations*	2
*Conclusion*	9
PART I: General Issues	9
*Separation* of *Functions*	9
*Three-Member* *Sub-Panel*	10
*Judges’* *Professional* *Liability* *Insurance*	10
PART II: The Initial Review and Inquiry	11
PART III: Current Procedures During Investigation	11
PART IV: Dispositions Following Completion of an Investigation	16
PART V: Current Procedures Upon Formal Written Complaint	17
*Answer* *and* *Disposition* on *the* *Pleadings*	17
*Training*	19
*Settlements*	19
*Pre-hearing* *Procedure*	20
Subpoenas	20
Motions	21
Discovery	21
*Hearing*	23
*Procedure*	23
*Burden* of *Proof* *and* *Rules* of *Evidence* at *Hearing*	24
*Post–hearing* *Procedure*	25
PART VI: Problems with Current Standards of Conduct	26
*Misconduct* *Warranting* *Sanctions*	26
*Disability* *Warranting* *Mandatory* *Retirement*	27
PART VII: Current Commission Procedures After A Hearing;
Consideration of Referee’s Report or Agreed Statement of Facts	29
*Standards* *for* *Review*	29
*Sanctions*	30
Conclusion

Appendix A; Sample Professional Liability Insurance Policy

Appendix B: Comparison of 22 NYCRR | 7000.6 and § 7000.9 with ABA Model Rules for Judicial Disciplinary Enforcement

NEW YORK COUNTY LAWYERS’ ASSOCIATION

TASK FORCE ON JUDICIAL INDEPENDENCE

REPORT ON THE NEW YORK STATE COMMISSION ON JUDICIAL CONDUCT

EXECUTIVE SUMMARY

The Task Force on Judicial Independence

With a long history of commitment to an independent judiciary as a backdrop, the Board of Directors of the New York County Lawyers’ Association (NYCLA) established the Task Force on Judicial Independence in March 2006. Under the leadership of Hon. Betty Weinberg Ellerin and NYCLA Past President Norman L. Reimer as co-chairs, a diverse Task Force of lawyers, including several with media experience, judges and academics, was empanelled. The Task Force first developed a definition of judicial independence and then held focus groups with judges to identify issues that affect judicial independence. When media pressures emerged as a problem experienced by judges, the Task Force held a series of fruitful meetings with the media to discuss ways to foster freedom of the press and preserve judicial independence. In 2007, the Task Force sponsored a major conference, hosted by the Dwight D. Opperman Institute of Judicial Administration at New York University School of Law, where, after a video presentation by Hon. Sandra Day O’Connor, judges discussed pressures from the media, judicial administration, institutional players and the New York State Commission on Judicial Conduct (“Commission”).

The Subcommittee on the Commission on Judicial Conduct

In 2007, the Task Force established a Subcommittee on the Commission (“Subcommittee”), chaired by Hon. Marcy L. Kahn and NYCLA Past President Klaus Eppler, to analyze procedures and make recommendations for changes that would promote judicial independence.

The Subcommittee reviewed published material relating to the Commission, including applicable provisions of the New York State Constitution and the Judiciary Law, the Commission’s Operating Procedures and Rules, its website and its Policy Manual, and solicited and received input from present and former members of the Commission, attorneys who practice before the Commission, judges and present and former Commission staff. The Task Force gratefully acknowledges, in particular, the extensive time Robert H. Tembeckjian, the current Administrator of the Commission, gave it and appreciates his bringing suggested policy changes to the Commission, as well as the Subcommittee’s recommendation that the Commission publish the Policy Manual. This Report contains suggestions and recommendations for changes in the Commission’s policies, many of which the Task Force recommends be reflected in the Policy Manual, An amended Policy Manual should then be published. The Task Force also makes recommendations relating to the statutory and regulatory framework currently applicable to the work of the Commission.

Overview of Report

The Commission clearly performs a very important function. The need to insure that judges and other participants in our system of justice act with integrity and that there is a public perception of such integrity cannot be overstated. However, the Task Force’s review has indicated that enforcement of standards for judicial conduct carries with it a danger that the independence of the judicial process may be compromised. The Task Force has also noted that there is a significant difference between the perception of the members of the Commission and its staff, on the one hand, and of the judges who have been involved in proceedings before the Commission and their attorneys, on the other hand, as to how the Commission operates and the effect of its proceedings on the judges and the judicial system.

The suggestions and recommendations contained in this Report are designed to enhance the fairness of proceedings before the Commission and to reduce the danger that the Commission may unintentionally compromise the independence of the judicial process. Some of the recommendations are for changes in the rules of the Commission, and others are for changes in the way that the Commission or its staff operates that are not contained in the rules. Other recommendations would require changes in the New York State Constitution or legislative enactment. Although the Task Force believes that its recommendations will result in due process improvements, it does not expect that they will solve all problems or that they will eliminate the inherent tension between enforcement of standards of judicial conduct and the independence of the judiciary.

The Task Force discusses its suggestions and recommendations with respect to proceedings before the Commission in the order in which matters before the Commission typically proceed. Unless otherwise noted, references are to 22 NYCRR, the Operating Procedures and Rules of the Commission as contained in Part 7000 of Chapter V of Subchapter C of Title 22 of the Compilation of Codes, Rules and Regulations.

Summary of Recommendations

Part I: General Issues

Separation of Functions

Ideally, the Commission (and NYCLA) should advocate for an appropriate amendment of the Judiciary Law to remove the investigative/prosecutorial function of the Commission from the adjudicatory function. The Task Force believes this change does not necessarily require a constitutional amendment.
Unless and until the Judiciary Law is thus amended, the Commission should divide itself into separate rotating investigative/prosecutorial and adjudicative panels to ensure that no member of the Commission will be involved in any way with both the investigation and prosecution of a charge, on the one hand, and adjudication of the same charge, on the other hand. This solution has also been adopted in the ABA Model Rules for Judiciary Disciplinary Enforcement, (Rule 3, “Organization and Authority of the Commission”)
The current statutory framework permits the Commission to adopt procedures similar to those in the ABA Model Rules.

Three-Member Sub-Panel

Whenever the Commission delegates to a referee, the existing procedures that provide for a single referee should be replaced with procedures requiring a three-member sub-panel. This would address many of the due process issues relating to the Commission’s procedures. The Commission’s rules could provide that each of the Commission and respondent would select a member of the sub-panel. Then, the two selected members could choose the third member of the sub-panel. All of the members of the three-person sub-panel should be selected from a list certified by the Commission.

Judges’ Professional Liability Insurance

A legislative amendment should be enacted to provide access to defense services for judges. Pending such a legislative amendment, OCA, as part of the judiciary budget, should purchase a professional liability insurance policy similar to the policy maintained for state judges in California. A specimen of such a policy issued by Columbia Casualty Company is Appendix A to this Report, The Task Force believes that providing such insurance coverage would greatly ameliorate the concerns that judges today have with respect to the fairness of proceedings before the Commission and would also likely result in enhancing the ability of the Commission and its staff to develop facts relating to complaints against judges, while ensuring the fair and appropriate resolution of complaints.

Part II: The Initial Review and Inquiry

The Task Force concurs with Mr. Tembeckjian’s view that since the great majority of complaints are dismissed at this stage, it is probably unnecessary (and perhaps counterproductive) to notify judges before the Commission authorizes an investigation. However, where an initial review and inquiry continue for more than 120 days, the Task Force believes it is appropriate to notify the judge so that he or she may preserve applicable evidence and recollections of the conduct in question.

Part III: Current Procedures During Investigation

No information about prior dismissed or unrelated complaints should be provided in a staff summary to the Commission, either when the staff makes a recommendation whether to dismiss or investigate or when, following an investigation, the staff recommends dismissal or issuance of a formal complaint. A dismissal with caution may be disclosed in the staff summary.
While Mr. Tembeckjian argues that it is counter-productive to notify a judge (requiring the judge thereafter to respond in the affirmative to inquiries concerning whether the judge has ever been the subject of complaints to the Commission) before the judge is asked to provide a written response or make an appearance, on balance, absent good cause, judges should be promptly notified when the Commission authorizes an investigation.
Except for good cause, the staff should inform the judge of the source of the complaint, including, where applicable, the name of the complainant, whenever the judge is asked to provide written responses or appear to give testimony.
The Policy Manual should provide for more extensive notice than is currently provided to permit the judge to obtain and consult with counsel and review relevant materials prior to the required appearance or written response.
The Administrator at an early stage – perhaps even in rare cases before the Commission authorizes an investigation – should determine whether it is likely the judge will be requested to provide a written statement or an appearance or whether the investigation will be so extensive (e.g., involving examination of witnesses) that the judge is likely to become aware of the investigation. In such cases, the judge should immediately be notified of the commencement or pendency of the investigation. Such notification should include the name of the complainant (if known) or that the investigation is at the initiative of the Commission or its Administrator. Where investigations arise based on newspaper or other reports, the notification should include the source of the complaint. Further, in a typical case, the judge should be advised of the subject matter of the complaint or investigation, and if there are court transcripts relating to the subject matter of the complaint or investigation, copies should be provided to the judge.
Where a written statement from or an appearance by the judge is requested, the judge should be given an appropriate time period (certainly longer than the period provided in 22 NYCRR § 7000.3(e)) to collect evidence and undertake discovery.
In appropriate cases, subpoena power should be extended to the judge.
Where witnesses are examined during the investigatory stage, judges should be advised of the examinations and provided with transcripts, if such exist.
Where judges are required to provide a written response or to appear, judges should be provided with the relevant evidence collected in the examination with respect to which responses are being sought from the judge, including any court records or transcripts. Such evidence should be provided to the judge a reasonable time prior to the judge’s appearance or written response, except in the non-typical case where good cause exists for not providing evidence. Further, in the absence of such good cause, whenever not inappropriate, judges should also be provided with information concerning the identity of witnesses and transcripts of their testimony.
The Policy Manual provides (Section 2.6) that “investigations shall be limited to conduct reasonably related to the complaint” and that if the staff “is made aware of clearly unrelated acts that may constitute judicial misconduct,” the staff must seek authorization from the Commission to investigate in “a separate complaint.” The “reasonably related” standard is too ambiguous to provide the necessary guidance to the staff. A new Policy Manual standard should be adopted that will provide that unless a new matter is substantially related to a matter under investigation, the staff must obtain new authorization from the Commission.
If no action is taken within 12 months after the judge is apprised of the investigation, the investigation should be closed absent good cause.
Because it is an essential part of the Commission’s mission to uphold respect for the judiciary, it is important that the Commission and its staffs communications to judges accord judges the highest degree of respect. The Policy Manual should include a provision to this effect.

Part IV: Dispositions Following Completion of an Investigation

In all cases where the staff of the Commission is inclined to recommend either the institution of formal charges or the issuance of a letter of dismissal and caution, the staff should provide the judge with an opportunity at that point to present evidence and make a written statement that would be part of the record provided to the Commission in connection with the staff s recommendation. Such an opportunity should be provided where the judge has been required to appear for an interview, whether or not the judge has, in connection with such interview, supplied evidentiary data. This opportunity should also be available where the staff has required a written response from the judge. The latter innovation would require an amendment to 22 NYCRR § 7000.3.
The Commission should consider instituting a rale or policy requiring the staff to conclude an investigation and make its recommendation within a specified period of time. The time limit should be made known to the judge when the judge is apprised of the pendency of the investigation. The staff should be authorized to seek extensions and, if an extension is granted by the Commission, the judge should be apprised of the extension.

Part V: Current Procedures Upon Formal Written Complaint

Answer and Disposition on the Pleadings

The Task Force’s recommendations, as set forth in Parts I, II and III of this Report relating to due process issues during the initial review and inquiry stage and the investigation stage, are, to the extent not expressly mandated, applicable after the Commission has authorized the issuance of a formal written complaint. The Task Force supplements these recommendations, as appropriate, below.
As previously noted, the Task Force recommends that, upon completion of the initial inquiry pursuant to 22 NYCRR § 7000.3(a), the Commission should be required to notify the judge if the Commission decides to undertake a full investigation pursuant to 22 NYCRR § 7000.3(b). This requirement has been adopted in the ABA Model Rules for Judicial Disciplinary Enforcement (Rule 17, “Screening and Investigation”) and the substantive provisions of the ABA Rule should be incorporated into the Policy Manual.

Training

The statute and/or regulations should expressly provide that every referee (or member of the hearing panel) must receive specific formal training in the rules and procedures governing judicial disciplinary proceedings. The Task Force believes that the existence of a balanced and well-educated sub-panel will promote both fundamental fairness to the individual respondent and the appearance of fairness to the judiciary and the public.
At present, members of the Commission do not receive any formal training. Their orientation program consists of two to three hours of informal briefing by the Administrator. More formal training of Commissioners should be implemented with the assistance of the New York State Judicial Institute. The cost of the training should be borne by the Commission.

Settlements

Consistent with 22 NYCRR § 7000.6(d), the Commission should adopt a policy statement that it encourages settlements agreed upon between the Commission’s staff and the respondent judge, including agreements as to a proposed sanction or range of sanctions. The Commission should accept such settlements and sanctions unless the Commission deems such settlements and sanctions inappropriate. Where the settlement includes a proposed sanction or range of sanctions, the Commission may invite oral argument. In the event the Commission rejects a stipulated proposed sanction, neither the proposed stipulation nor any statement made in the course of discussions leading to the proposed stipulation may be used for any purpose or in any subsequent proceeding.

Pre-hearing Procedure

Subpoenas

A respondent judge should be granted the power to compel the attendance of witnesses, as well as the production of relevant documentary evidence at the hearing on the formal written complaint, without needing the approval of the referee (or hearing panel). Any concern as to the possibility of resulting litigation and expense for non-party witnesses may be addressed by the Commission’s establishing and including in its Policy Manual an informal procedure by which a third-party witness may move to quash a subpoena by letter or written objections addressed to the referee (or hearing panel), on notice to the Commission staff and respondent, and without the necessity of hiring counsel or resorting to a formal motion to quash the subpoena in the Supreme Court. ABA Model Rule 14 (“Subpoena Power”) contains such a provision.

Motions

Regulations should specifically permit motions to dismiss to be made before the referee (or hearing panel), authorizing the referee (or hearing panel) to make a recommendation to the Commission on the resolution of the motion. If the recommendation of a three- member sub-panel is adopted, and each member of that panel receives training and education in the rules and procedures that govern disciplinary proceedings, many of the concerns would be addressed.

Discovery

In order for an accused judge to have an opportunity to fully investigate the facts and circumstances surrounding the formal written complaint, the period for discovery should commence within 20 days of the filing of the judge’s answer, as has been suggested by the ABA Model Rules. (Rule 22, “Discovery”) At that time, the Administrator and respondent judge would be required to exchange the names and contact information of any persons then known to have knowledge of the facts surrounding the formal written complaint. The hearing panel would set a future date for the exchange of the names and contact information of all persons each party intends to call at the hearing. Each party then would be allowed to depose those witnesses, and any other witnesses who will be unable to testify. Each party would have a continuing duty to produce all evidentiary data and material relevant to the formal written complaint once the discovery period has commenced.
The continuing duty should also encompass all exculpatory evidence relevant to the formal written complaint. This necessarily must include all evidence useful to impeach the credibility of an Administrator’s witnesses. In addition, the current “substantially prejudicial” standard, used to determine whether the failure of an Administrator to produce exculpatory evidence will affect the validity of the proceedings, should be altered. Given the gravity of the possible consequences to a respondent, a more appropriate standard is whether there is a reasonable probability that had the evidence been disclosed, the result of the hearing would have been different.

Hearing

Procedure

Some of the Task Force’s due process concerns regarding the procedural aspects of hearings will be addressed by adoption of the recommendations above. Concerns as to the ability of the respondent judge to confront any complainant at the hearing would be alleviated if the subpoena power were vested in the respondent judge, without the necessity of approval by the referee (or hearing panel). Further, the broad discretion of a single and potentially untrained referee will be addressed if a three-member sub-panel consisting of appropriately trained persons is used, and the proposal about the separation of Commission functions is adopted.

Burden of Proof and Rules of Evidence at Hearing

The standard of proof necessary to support a finding of judicial misconduct before the referee (or hearing panel) should be that of “clear and convincing evidence,” as has been adopted in a large majority of the states and as has been previously recommended by NYCLA and by the ABA. This is the same standard used in many states in attorney disciplinary proceedings. While the Task Force’s mandate does not include the disciplinary committees, it recommends that standard should apply in New York as well for attorney disciplinary proceedings.

Post-hearing Procedure

The judicial disciplinary proceedings should be completed as speedily and efficiently as possible for two reasons. First, it is counterproductive to allow a misconduct charge to hang over the head of a sitting judge. Second, it is important to foster a public perception that judicial misconduct will be dealt with swiftly. Because the regulations governing post-hearing procedure do not now contain specific timeframes for all of the following, the regulations should be amended to provide for definite timeframes for the production of hearing transcripts, submission of written arguments to the referee (or hearing panel), and submission of the referee’s (or hearing panel’s) report to the Commission.

Part VI: Problems with Current Standards of Conduct

Misconduct Warranting Sanctions

The standards for judicial conduct that are set forth in the New York Constitution ideally should be modified to conform to the ABA Model Rules. (Rule 6, “Grounds for Discipline”)

Disability Warranting Mandatory Retirement

It would be prudent to have in place certain protocols for matters where disability is an issue. One fundamental change is to distinguish a disability that does not affect a judge’s ability to perform judicial functions, from an incapacity that does, as is recommended in the Model Rules. (See commentary to Rule 27, “Cases Involving Allegations of Mental or Physical Incapacity.”) The ABA Model Rules’ approach to incapacity is a sensible one, because it seems fundamental “that incapacity not be treated as misconduct. Willful conduct should be clearly distinguished from conduct that is beyond the control of the judge.”
More specific changes are also recommended, again as suggested by the ABA Model Rules. First, in cases in which disability or incapacity is reasonably believed to be an issue, the judge and referee (or hearing panel) should agree on at least one qualified medical or psychiatric professional to examine the judge prior to the hearing, and to submit a report to the parties. This procedure may facilitate an agreed statement of facts or stipulated disposition, thus avoiding a full hearing. The procedure will also solve the problem of assigning to a referee (or hearing panel) the task of evaluating the mental or physical incapacity of a judge.
The confidentiality of incapacity proceedings is of utmost importance because the proceedings likely will involve medical, psychological or other personal and privileged information. Further, a judge should be able to allege an inability to assist in his or her own defense due to a mental or physical incapacity. A judge should not be forced to choose between alleging an inability to defend and waiving medical confidentiality.
Presently retirement, the sole possible outcome of a finding of incapacity, does not address the many possible factual situations that may arise in an incapacity proceeding. As provided in ABA Model Rule 27, an equitable disposition may warrant placing the judge on incapacity inactive status. Instead of retirement, it may be appropriate to transfer a judge to such a status. After a specified period of time, a judge should be permitted to petition for reinstatement to active status upon a showing that the incapacity no longer exists.

Part VII: Current Commission Procedures After Hearing; Consideration of Referee’s Report or Agreed Statement of Facts

Standards for Review

The Commission should set forth – perhaps in its Policy Manual – its practice with respect to the standard of review of referee (or hearing panel) reports and agreed statements of facts, as well as its procedures if it makes de novo factual findings during such review.
The standard of proof necessary to support a Commission finding of judicial misconduct should be that of “clear and convincing evidence.” This is the same standard called for in Recommendation V.II for use in a hearing before a referee (or hearing panel).

Sanctions

The range of sanctions to be imposed for judicial misconduct should be expanded beyond the current public punishment options of admonition, censure, removal and retirement, and referral to the attorney grievance committee of the Appellate Division for removal or suspension from the practice of law, to include intermediate sanctions that would address a wider range of misconduct and that would more proportionately reflect the nature and extent of the misconduct in question, as well as the addition of an incapacity inactive status to accommodate cases involving mental or physical incapacity.
A final determination of suspension should be available and made by the Court of Appeals. (See Model Rules, Rule 6, “Grounds for Discipline; Sanctions Imposed; Deferred Discipline,” at 1.) The Task Force noted with approval the Commission’s recommendation in its 2009 Annual Report for the Governor and Legislature to consider a constitutional amendment to provide for suspension without pay as an alternative sanction.
One of the Commission’s current ad hoc policies, a deferred discipline agreement under which the judge would agree to “undergo treatment, participate in education programs or take other corrective action” as a result of incidents of minor misconduct, should be formalized.

Conclusion

While the Task Force urges the implementation of the recommendations contained in this Report, it expects to consider other issues relating to the Commission in the future.

PART I: GENERAL ISSUES

An overarching issue relating to the fairness of proceedings before the Commission is whether the Commission should continue to function in its present manner in both an investigative/prosecutorial role and in an adjudicative role.

Although the Policy Manual confirms that the Administrator and staff are not present when the Commission votes to authorize a formal written complaint and are not present when the Commission makes its determination regarding sanctions, there is ample opportunity for consultation between the staff and the Commission beforehand during the investigatory stage. The Task Force strongly urges the Commission to establish an effective firewall between investigative staff and the Commission to avoid any inappropriate influence by staff on the Commission’s decision making. The current absence of such a firewall may present the appearance that the Commission lacks adequate neutrality in the contested matters that come before it.

Separation of Functions

Recommendation:

I.1 Ideally, the Task Force believes the Commission (and NYCLA) should advocate for an appropriate amendment of the Judiciary Law to remove the investigative/prosecutorial function of the Commission from the adjudicatory function. The Task Force believes this change does not necessarily require a constitutional amendment.

Recommendation:

I.2 The Task Force recommends that unless and until the Judiciary Law is thus amended, the Commission should divide itself into separate rotating investigative/prosecutorial and adjudicative panels to ensure that no member of the Commission will be involved in any way with both the investigation and prosecution of a charge, on the one hand, and adjudication of the same charge, on the other hand. This solution has also been adopted in the ABA Model Rules for Judiciary Disciplinary Enforcement. (Rule 3, “Organization and Authority of the Commission”)

While Judiciary Law Section 41(6) specifies that certain actions of the Commission, including the issuance of a formal written complaint and the censure, removal or retirement of a judge requires the vote of six of the 11 members of the Commission, Judiciary Law Section 43 authorizes the Commission to delegate any of its functions, powers and duties to a panel of three of its members.

Recommendation:

The Task Force believes that the current statutory framework permits the Commission to adopt procedures similar to those in the ABA Model Rules.

Three-Member Sub-Panel

Recommendation:

The Task Force believes that whenever the Commission delegates to a referee, the existing procedures that provide for a single referee should be replaced with procedures requiring a three-member sub-panel. This would address many of the due process issues relating to the Commission’s procedures. The Commission’s rules could provide that each of the Commission and respondent would select a member of the sub-panel. Then, the two selected members could choose the third member of the sub-panel. All of the members of the three-person sub-panel should be selected from a list certified by the Commission.

Judges’ Professional Liability Insurance

Another overarching issue relating to the actual and perceived fairness of the proceedings before the Commission is the fact that judges facing a Commission investigation are neither provided with counsel nor reimbursed for any expenses that they incur in responding to a Commission inquiry or proceeding. It is expensive and time consuming to rebut even an unfounded charge. This is an unfair burden in all cases, and is even more egregious when the unsubstantiated complaint arises out of the performance of a judicial duty. Furthermore, because many judges cannot afford to retain counsel, or delay doing so out of economic necessity, this calls into question the fundamental fairness of the process. Indeed, the Task Force learned of situations in which the inability to bear the costs of defense induced judges to make admissions solely to resolve the allegation expeditiously. Equally troubling is the prospect that the fear of having to face the unreimbursed cost of defending against unfounded allegations may chill judicial independence.

Recommendation:

I.5 The Task Force recommends legislative amendment to provide access to defense services for judges. Pending such a legislative amendment, the Task Force recommends that OCA, as part of the judiciary budget, should purchase a professional liability insurance policy similar to the policy maintained for state judges in California. A specimen of such a policy issued by Columbia Casualty Company is Appendix A to this Report. The Task Force believes that providing such insurance coverage would greatly ameliorate the concerns that judges today have with respect to the fairness of proceedings before the Commission and would also likely result in enhancing the ability of the Commission and its staff to develop facts relating to complaints against judges, while ensuring the fair and appropriate resolution of complaints.

Part II: THE INITIAL REVIEW AND INQUIRY

When a complaint is received or when the Commission initiates a complaint (which then requires the Administrator to file the complaint), the staff is automatically, without Commission action, authorized to conduct an initial review and inquiry. 22 NYCRR § 7000.3(a). During an initial review and inquiry, the staff may seek information regarding the complained-of conduct through obtaining court records or interviewing witnesses or others. The staff cannot subpoena any witness or the judge without the Commission’s prior approval. Some have urged that judges be notified of complaints at this stage — particularly if the Commission staff is interviewing one or more witnesses (as opposed to merely obtaining transcripts of the relevant proceedings in the judge’s court).

Recommendation:

II.1 The Task Force concurs with Mr. Tembeckjian’s view that since the great majority of complaints are dismissed at this stage, it is probably unnecessary (and perhaps counterproductive) to notify judges before the Commission authorizes an investigation. However, where an initial review and inquiry continue for more than 120 days, the Task Force believes it is appropriate to notify the judge so that he or she may preserve applicable evidence and recollections of the conduct in question.

Part III: CURRENT PROCEDURES DURING INVESTIGATION

Following receipt of a complaint or after “an initial review and inquiry,” the Commission may dismiss the complaint or “authorize” an investigation, 22 NYCRR § 7000.3(b). The Commission sees all complaints, typically together with a summary of the factual charges as prepared by the staff and a recommendation from the staff whether to dismiss or investigate. In 2008, the Commission authorized an investigation of 262 complaints out of the approximately 1,923 complaints received. (The Commission’s 2009 Annual Report) The term investigation “means the activities of the commission or its staff intended to ascertain facts relating to the accuracy, truthfulness or reliability of the matters alleged in a complaint. An investigation includes the examination of witnesses under oath or affirmation, requiring the production of books, records, documents or other evidence that the commission or its staff may deem relevant or material to an investigation, and the examination under oath or affirmation of the judge involved before the commission or any of its members.” 22 NYCRR § 7000.1(j).

The summary that the staff provides to the Commission on new complaints may include, in addition to a summary of factual charges, information concerning any prior caution or discipline or pending investigation.

Recommendation:

III.1 No information about prior dismissed or unrelated complaints should be provided in a staff summary to the Commission, either when the staff makes a recommendation whether to dismiss or investigate or when, following an investigation, the staff recommends dismissal or issuance of a formal complaint. A dismissal with caution may be disclosed in the staff summary.

Under current procedures when the Commission authorizes an investigation, the judge is not notified. In 2008, 52 of the 262 authorized investigations resulted in actions by the Commission or the staff that involved notifying the judge. In an additional 42 cases involving authorized investigations, the investigations were concluded with a dismissal and the judge was not notified.

Recommendation:

III.2 While Mr. Tembeckjian argues that it is counter-productive to notify a judge (requiring the judge thereafter to respond in the affirmative to inquiries concerning whether the judge has ever been the subject of complaints to the Commission) before the judge is asked to provide a written response or make an appearance, the Task Force believes that, on balance, absent good cause, judges should be promptly notified when the Commission authorizes an investigation.

Where the judge is asked to provide a written response, there is no obligation to serve a copy of the complaint upon the judge, but, in practice, the subject of the complaint is typically outlined in the request for a written response and the Policy Manual provides that “as a general practice” the judge “should be provided with a copy of the complaint.”

Recommendation:

III . 3 Except for good cause, the Task Force believes that the staff should inform the judge of the source of the complaint, including, where applicable, the name of the complainant whenever the judge is asked to provide written responses or appear to give testimony.

The powers of the Commission, its Administrator and staff, in connection with investigations, are quite broad. Section 7000.3(d) provides: “Any member of the commission, or the administrator, may administer oaths or affirmations, subpoena witnesses, compel their attendance, examine them under oath or affirmation, and require the production of any books, records, documents or other evidence that may be deemed relevant or material to an investigation. The commission may, by resolution, delegate to staff attorneys and other employees designated by the commission the power to administer oaths and take testimony during investigations authorized by the commission.” The Task Force understands that, in practice, the Administrator and the staff have wide latitude in the conduct of investigations authorized by the Commission.

The judge does not have a right to be advised of or be present at any examination of witnesses during an investigation, to receive transcripts of any such examinations or to examine any books, records, documents or other evidence collected by the Commission, the Administrator or staff during an investigation.

As part of its powers in connection with an investigation, the Commission may “request a written response from the judge who is the subject of the complaint” (22 NYCRR § 7000.3(c)) and also “may require the appearance of the judge involved” (22 NYCRR § 7000.3(e)). Obviously, in either case the judge at that point becomes aware of the existence of the investigation. Section 7000.3(e) provides that when the Commission requires the judge’s appearance “the judge shall be notified in writing of his required appearance either personally, at least three days prior to such appearance, or by certified mail, return receipt requested, at least five days prior to such appearance. A copy of the complaint shall be served upon the judge at the time of such notification.”

While the provisions of § 7000.3(c) and (e) require Commission action when seeking a written response from or attendance by the judge, it is not clear whether, in practice, these decisions are made by the Commission or by the Administrator or staff attorneys or other staff members. When authorizing an investigation, the Commission typically authorizes the Administrator to seek a written response from or an appearance by the judge. While the Policy Manual does not contain any provision relating to notification of a judge’s appearance, the Task Force was advised that, in practice, judges are provided with longer notice than the three days required under 22 NYCRR § 7000.3(e).

Recommendation:

III.4 The Task Force recommends that the Policy Manual provide for more extensive notice than is currently provided to permit the judge to obtain and consult with counsel and review relevant materials prior to the required appearance or written response.

There is no obligation to provide the judge with information concerning evidence collected by the Commission or its staff in advance of the judge’s required response in writing or by appearance. Complaints generated by the Commission or the Administrator typically include a statement to the effect that “a judge under investigation may be required to reply to other allegations in addition to” those on which response is sought from the judge.

Section 7000.3(f) provides for the judge’s right to counsel “during any and all stages of the investigation” but only if the judge’s appearance is required. This section also gives the judge the right to present “evidentiary data and material relevant to the complaint.”

Section 7000.3(e) provides that the appearance of a judge in the course of an investigation must be before “the commission, or any of its members, or a referee designated by the commission.” The Task Force understands that in recent years, most appearances by a judge during the investigative stage have been before a referee rather than the Commission or its members. Referees are designated by the Commission, not by the Commission’s staff, and are not employees of the Commission.

The Commission’s operating rules and procedures do not include any right by the judge to be protected against self-incrimination when the Commission or its staff requires a written response from or an appearance by the judge.

Recommendations:

The Subcommittee has heard from persons currently or formerly associated with the Commission that, in their view, the Commission’s procedures in connection with investigations compare favorably with the procedures in disciplinary investigations regarding professionals generally (or, at any rate, do not provide for lesser safeguards). Whether or not that is true, the Task Force believes that because judges are subject to sanction for failure to live up to high standards, scrupulous adherence to meaningful due process during investigatory proceedings and all other stages is essential.

III.5 The Administrator at an early stage — perhaps even in rare cases before the Commission authorizes an investigation — should determine whether it is likely the judge will be requested to provide a written statement or an appearance or whether the investigation will be so extensive (e.g., involving examination of witnesses) that the judge is likely to become aware of the investigation. In such cases, the judge should immediately be notified of the commencement or pendency of the investigation. Such notification should include the name of the complainant (if known) or that the investigation is at the initiative of the Commission or its Administrator. Where investigations arise based on newspaper or other reports, the notification should include the source of the complaint. Further, in a typical case, the judge should be advised of the subject matter of the complaint or investigation, and if there are court transcripts relating to the subject matter of the complaint or investigation, copies should be provided to the judge.

III.6 Where a written statement from or an appearance by the judge is requested, the judge should be given an appropriate time period (certainly longer than the period provided in 22 NYCRR § 7000.3(e)) to collect evidence and undertake discovery.

III.7.In appropriate cases, subpoena power should be extended to the judge.

III.8.Where witnesses are examined during the investigatory stage, judges should be advised of the examinations and provided with transcripts, if such exist.

III.9.here judges are required to provide a written response or to appear, judges should be provided with the relevant evidence collected in the examination with respect to which responses are being sought from the judge, including any court records or transcripts. Such evidence should be provided to the judge a reasonable time prior to the judge’s appearance or written response, except in the non-typical case where good cause exists for not providing evidence. Further, in the absence of such good cause, whenever not inappropriate, judges should also be provided with information concerning the identity of witnesses and transcripts of their testimony.

III .10 The Policy Manual provides (Section 2.6) that “investigations shall be limited to conduct reasonably related to the complaint” and that if the staff “is made aware of clearly unrelated acts that may constitute judicial misconduct,” the staff must seek authorization from the Commission to investigate in “a separate complaint.” The Task Force believes that the “reasonably related” standard is too ambiguous to provide the necessary guidance to the staff. A new Policy Manual standard should be adopted that will provide that unless a new matter is substantially related to a matter under investigation, the staff must obtain new authorization from the Commission.

III.11 Section 7000.3 does not mandate any time limits for the conduct of an investigation. The Subcommittee has heard from some sources that certain investigations have remained open for many months, with judges, once apprised of the investigation, not hearing from the Commission or its staff for substantial periods of time. The Task Force recommends that if no action is taken within 12 months after the judge is apprised of the investigation, the investigation should be closed absent good cause.

III.12 The Subcommittee heard from some sources that communications to judges from the Commission staff have been perceived, in at least some instances, as unnecessarily disrespectful or accusatory in tone. Because it is an essential part of the Commission’s mission to uphold respect for the judiciary, it is important that the Commission and its staff’s communications to judges accord judges the highest degree of respect. The Policy Manual should include a provision to this effect.

Part IV: DISPOSITIONS FOLLOWING COMPLETION OF AN INVESTIGATION

After the authorized investigation is completed, the staff prepares a report to the Commission recommending: (1) institution of formal charges, (2) issuance of a letter of dismissal and caution or (3) dismissal.

The Commission then reviews the staff recommendation. In most but not all cases, the Commission disposes of the matter in accordance with the staff recommendation. Of the 7,332 investigations authorized between 1975 and December 31, 2008, 3,545, or nearly half, were dismissed by the Commission without action (i.e., without a letter of caution) and over 1,233 were dismissed with a letter of caution (which is not made public). The remaining investigations either resulted in formal charges or were closed for various reasons (e.g., the judge’s resignation), and 169 were pending at December 31, 2008. (The Commission’s 2009 Annual Report)

Where the Commission disposes of the matter by dismissing with a letter of caution, 22 NYCRR § 7000.4 provides that the letter of caution issued may be used in subsequent proceedings before the Commission with certain limitations.

Recommendations:

IV.1 In all cases where the staff of the Commission is inclined to recommend either the institution of formal charges or the issuance of a letter of dismissal and caution, the staff should provide the judge with an opportunity at that point to present evidence and make a written statement that would be part of the record provided to the Commission in connection with the staff’s recommendation. Such an opportunity should be provided where the judge has been required to appear for an interview, whether or not the judge has, in connection with such interview, supplied evidentiary data. This opportunity should also be available where the staff has required a written response from the judge. The latter innovation would require an amendment to 22 NYCRR § 7000.3.

IV.2 The Commission should consider instituting a rule or policy requiring the staff to conclude an investigation and make its recommendation within a specified period of time. The time limit should be made known to the judge when the judge is apprised of the pendency of the investigation. The staff should be authorized to seek extensions and, if an extension is granted by the Commission, the judge should be apprised of the extension.

Part V: CURRENT PROCEDURES UPON FORMAL WRITTEN COMPLAINT

Pursuant to the Policy Manual, votes to authorize service of a formal written complaint take place in executive session of the Commission, without the presence of the Administrator or any staff member, although the Commission may discuss complaints for which a formal written complaint is recommended in regular session with the Administrator and/or staff present. When a formal written complaint is voted upon, the Clerk of the Commission advises the Administrator, who then prepares and signs the actual formal written complaint, which is then served upon the judge without further review by the Commission.

Answer and Disposition on the Pleadings

If the Commission orders the Administrator to file a formal written complaint, the respondent judge must serve a verified answer within 20 days of service of the complaint. 22 NYCRR § 7000.6(b). There is no statutory or regulatory provision that authorizes discovery prior to the service of an answer.

Either party may move for a summary determination by the Commission of any issues being adjudicated “if the pleadings, and any supplementary materials, show that there is no genuine issue of material fact and that the movant is entitled to such decision as a matter of law.” 22 NYCRR § 7000.6(c). If a determination is granted, each party shall have a “reasonable opportunity” to present written and oral argument with respect to possible sanctions. Id. The respondent also may move before the Commission to dismiss the formal written complaint. 22 NYCRR § 7000.6(f)(l)(ii). When deciding a motion, the Commission members “shall not have the aid or advice of the administrator or commission staff who has been engaged in the investigative or prosecutive functions in connection with the case under consideration or a factually related case.” 22 NYCRR § 7000.6(f)(3).

If the proceeding is not disposed of in any of the above manners, the Commission will order a hearing and appoint a referee to preside thereover. N.Y. Jud. L. § 43(2).

Recommendation:

V.l The Task Force’s recommendations, as set forth in Parts I, II and III of this Report relating to due process issues during the initial review and inquiry stage and the investigation stage, are, to the extent not expressly mandated, applicable after the Commission has authorized the issuance of a formal written complaint. The Task Force supplements these recommendations, as appropriate, below.

Concerns:

The Subcommittee has heard comments concerning both the initial filing of the formal written complaint and the lack of an opportunity for pre-answer discovery by a respondent judge, A judge may be faced with the prospect of answering without an adequate opportunity to investigate the underlying facts and circumstances surrounding the complaint.

As previously noted, the Task Force has concerns about the tripartite investigative, prosecutorial and adjudicative functions of the Commission. While in deciding a pre-hearing motion, the Commission members “shall not have the aid or advice of the administrator or commission staff who has been or is engaged in the investigative or prosecutive functions in connection with the case under consideration or a factually related case,” there are no specific regulations that require screening or any other procedures to separate the decision-making Commission members from the investigative staff. The Commission members on the one hand, and the Administrator and investigative staff on the other hand, have regular interaction with one another during the course of the year. The lack of an effective barrier between the Administrator and investigative staff and the Commission members could result in direct or indirect staff influence (however subtle) over the proceedings, which at least may convey an appearance of partiality.

Recommendation:

V.2 As previously noted, the Task Force recommends that, upon completion of the initial inquiry pursuant to 22 NYCRR § 7000.3(a), the Commission should be required to notify the judge if the Commission decides to undertake a full investigation pursuant to 22 NYCRR § 7000.3(b). This requirement has been adopted in the ABA Model Rules for Judicial Disciplinary Enforcement (Rule 17, “Screening and Investigation”) and the substantive provisions of the ABA Rule should be incorporated into the Policy Manual.

Training

Concern:

The Commission decides a limited number of pre-hearing motions, including motions for summary determination and to dismiss and certain unspecified motions “made prior to the appointment of the referee.” 22 NYCRR § 7000.6(f)(1). The referee is charged with deciding all other motions. 22 NYCRR § 7000.6(f)(2). A motion to disqualify the referee must be made to that referee within ten days of the notice of his or her appointment.

22 NYCRR § 7000.6(f)(5). The Commission will consider appeals from determinations of disqualification motions within ten days of the referee’s determination. Id.

Generally, the referee has broad discretion in deciding pre-hearing motions. The Task Force notes, however, its concern that the only affirmative qualification to hold the position of referee is membership in the bar. See supra note 8. It apparently is not necessary that the appointee have any formal training or familiarity with the rules and procedures governing disciplinary proceedings before the Commission.

Recommendations:

V.3 The Task Force recommends that the statute and/or regulations expressly provide that every referee (or member of the hearing panel) must receive specific formal training in the rules and procedures governing judicial disciplinary proceedings. The Task Force believes that the existence of a balanced and well-educated sub-panel will promote both fundamental fairness to the individual respondent and the appearance of fairness to the judiciary and the public.

V.4 At present, members of the Commission do not receive any formal training. Their orientation program consists of two to three hours of informal briefing by the Administrator. The Task Force recommends that more formal training of Commissioners be implemented with the assistance of the New York State Judicial Institute. The cost of the training should be borne by the Commission.

Settlements

Subject to Commission approval, the parties also may agree on a statement of facts and waive a hearing, in which case the Commission will make its determination based on the pleadings and statement of facts. 22 NYCRR § 7000.6(d).

Concern:

While many matters proceed to the Commission on an agreed statement of facts and some also include a stipulated proposed sanction, there are no published Commission guidelines concerning the Commission’s review or disposition of such proposed settlements. Defense counsel are disinclined to agree to settlements in the absence of such guidelines.

Recommendation:

V.5 The Task Force recommends that consistent with 22 NYCRR § 7000.6(d), the Commission adopt a policy statement that it encourages settlements agreed upon between the Commission’s staff and the respondent judge, including agreements as to a proposed sanction or range of sanctions. The Commission should accept such settlements and sanctions unless the Commission deems such settlements and sanctions inappropriate. Where the settlement includes a proposed sanction or range of sanctions, the Commission may invite oral argument. In the event the Commission rejects a stipulated proposed sanction, neither the proposed stipulation nor any statement made in the course of discussions leading to the proposed stipulation may be used for any purpose or in any subsequent proceeding.

Pre-hearing Procedure

Subpoenas

Only the referee and Administrator have the authority to subpoena witnesses. N.Y. Jud. L. § 42(1); 22 NYCRR § 7000.3(d). The respondent may request that the referee issue subpoenas on the respondent’s behalf, and the referee must grant “reasonable requests” for subpoenas. 22 NYCRR § 7000.6(e).

Concern:

The Subcommittee has heard complaints that the subpoena power is unfairly vested in the Administrator and referee alone. To the extent that the referee issues subpoenas on a judge’s behalf, a judge is more restricted than the Administrator in both the time and scope of discovery. Further, there do not appear to be any specific guidelines to determine the reasonableness of a discovery request. See 22 NYCRR § 7000.6(e).

Recommendation:

V.6 The Task Force believes that a respondent judge should be granted the power to compel the attendance of witnesses, as well as the production of relevant documentary evidence at the hearing on the formal written complaint, without needing the approval of the referee (or hearing panel). The Task Force believes that any concern as to the possibility of resulting litigation and expense for non-party witnesses may be addressed by the Commission’s establishing and including in its Policy Manual an informal procedure by which a third-party witness may move to quash a subpoena by letter or written objections addressed to the referee (or hearing panel), on notice to the Commission staff and respondent, and without the necessity of hiring counsel or resorting to a formal motion to quash the subpoena in the Supreme Court. ABA Model Rule 14 (“Subpoena Power”) contains such a provision.

Motions

Concern:

Another concern regards the appeal from a denial of a motion to disqualify the referee. A judge must first make the motion before the referee. If the motion is denied, the decision may be appealed to the Commission, The Commission, which appointed the referee to preside over the hearings, may have an inherent bias against disqualification. At the very least, there is an appearance that such a bias may exist.

Although motions to the Commission to dismiss a charge may apparently be made at any time, there is no provision for such motions to be made to and acted upon by a referee. It is generally assumed that the Commission is reluctant to dismiss a charge once a hearing procedure before a referee is underway since the evidence as of that point has been presented only to the referee.

Recommendation:

V7 The Task Force recommends that regulations specifically permit motions to dismiss to be made before the referee (or hearing panel), authorizing the referee (or hearing panel) to make a recommendation to the Commission on the resolution of the motion. The Task Force believes that if the recommendation of a three-member sub-panel is adopted, and each member of that panel receives training and education in the rules and procedures that govern disciplinary proceedings, many of the concerns noted above would be addressed.

Discovery

Upon the written request of the respondent and within ten days of the hearing, the Administrator is required to produce, without cost, copies of all documents the Administrator intends to produce at the hearing, a list of witnesses the Administrator intends to call to give testimony, and any written statements those witnesses have made. 22 NYCRR § 7000.6(h)(1). In any case, the Administrator must produce “exculpatory evidentiary data and material relevant to the formal written complaint” no less than ten days prior to the hearing. Id. Failure to produce this material, however, will affect the validity of the proceedings only if the failure is “substantially prejudicial” to the respondent. Id.; see also N.Y. Jud. L. § 44(4).

Upon written request of the Administrator and within ten days of the hearing, the respondent must produce, without cost, copies of all documents the respondent intends to produce at the hearing, a list of witnesses the respondent intends to call to give testimony, and any written statements those witnesses have made. 22 NYCRR § 7000.6(h)(2). Neither the Judiciary Law nor the regulations contemplate depositions.

Concern:

The Task Force is concerned with the procedures that govern discovery. The first concern is the limited time for and scope of discovery. For example, it may be difficult for a respondent to prepare an adequate defense without the ability to depose potentially adverse witnesses prior to the hearing. The problem is exacerbated by the limited timeframe between the production deadline and the hearing date. The Task Force believes that ten days is inadequate for the effective use of discovered materials at a hearing.

The Task Force also is concerned with the production of exculpatory evidence. The timing issues described above also exist here because the Administrator must turn over exculpatory information only ten days prior to the hearing. Further, the scope of “exculpatory evidentiary data and material relevant to the formal written complaint” is not clear from the plain language of the regulation. See 22 NYCRR § 7000.6(h)(1). For example, it is not clear whether this includes evidence useful to impeach the credibility of an Administrator’s witnesses. The Task Force also is troubled by the ambiguous “substantially prejudicial” standard used to determine whether the failure of an Administrator to produce exculpatory evidence will affect the “validity of a proceeding.” See id.; see also N.Y. Jud. L. § 44(4).

Recommendations:

V.8 The Task Force believes that, in order for an accused judge to have an opportunity to fully investigate the facts and circumstances surrounding the formal written complaint, the period for discovery should commence within 20 days of the filing of the judge’s answer, as has been suggested by the Model Rules. (Rule 22, “Discovery”) At that time, the Administrator and respondent judge would be required to exchange the names and contact information of any persons then known to have knowledge of the facts surrounding the formal written complaint. Id. The hearing panel would set a future date for the exchange of the names and contact information of all persons each party intends to call at the hearing. Id. Each party then would be allowed to depose those witnesses, and any other witnesses who will be unable to testify. Id. Each party would have a continuing duty to produce all evidentiary data and material relevant to the formal written complaint once the discovery period has commenced. Id.

V.9 The continuing duty should also encompass all exculpatory evidence relevant to the formal written complaint. This necessarily must include all evidence useful to impeach the credibility of an Administrator’s witnesses. In addition, the current “substantially prejudicial” standard, used to determine whether the failure of an Administrator to produce exculpatory evidence will affect the validity of the proceedings, should be altered. The Task Force believes that, given the gravity of the possible consequences to a respondent, a more appropriate standard is whether there is a reasonable probability that had the evidence been disclosed, the result of the hearing would have been different.

Hearing

Procedure

In most respects, the regulations promulgated by the Commission defer to subdivision 4 of Section 44 of the Judiciary Law if the Commission determines that a hearing is warranted. 22 NYCRR § 7000.6(a). The respondent must “be notified in writing of the date of the hearing either personally, at least twenty days prior thereto, or by certified mail, return receipt requested, at least twenty-two days prior thereto.” N.Y. Jud. L. § 44(4). The hearing must be conducted privately, unless the respondent requests otherwise in writing. Id. The complainant may be notified of the hearing. Id. Unless subpoenaed by the judge, the complainant’s presence is within the discretion of the referee. Id.

The referee may take testimony and receive evidence and other material relevant to the formal written complaint. Id. ; 22 NYCRR § 7000.6(i)(2). The respondent has the right to counsel during all stages of the hearing, and may call and cross-examine witnesses and produce evidence and relevant material. N.Y. Jud. L. § 44(4).

The proceedings are transcribed and kept in the Commission’s records. Id. If, during or after the hearing, the Commission determines that no further action is necessary, the complaint “shall be dismissed.” N.Y. Jud. L. § 44(6).

Concern:

The Task Force is concerned that subdivision 4 of Section 44 of the Judiciary Law does not adequately protect several of a respondent’s due process rights. One concern is that the presence of the complainant, unless called to testify by a judge, is within the discretion of the referee appointed by the Commission. Because a judge’s subpoena power is limited by the referee’s approval, it does not appear on the face of the regulations that a judge has an absolute right to confront any complainant.

The Task Force is also concerned with the broad discretion given to referees in circumstances where they are required to have only limited qualifications. The referee, appointed by the Commission, is empowered to conduct all aspects of a hearing. There is no requirement that a referee receive any formal or informal training or education, nor have any knowledge of or experience with the rules and procedures governing proceedings before the Commission. The only affirmative requirement is that the referee be a member of the bar. See supra note 8.

Recommendation:

V.10 The Task Force believes that some of its due process concerns regarding the procedural aspects of hearings will be addressed by adoption of the recommendations above. Concerns as to the ability of the respondent judge to confront any complainant at the hearing would be alleviated if the subpoena power were vested in the respondent judge, without the necessity of approval by the referee (or hearing panel). Further, the broad discretion of a single and potentially untrained referee will be addressed if a three- member sub-panel consisting of appropriately trained persons is used, and the proposal about the separation of Commission functions is adopted.

Burden of Proof and Rules of Evidence at Hearing

At the hearing, the Administrator or other attorney for the Commission bears the burden of proving the facts underlying the formal written complaint by a “preponderance of the evidence.” 22 NYCRR § 7000.6(i)(l). The rules of evidence applicable to non-jury trials apply at judicial misconduct hearings. 22 NYCRR § 7000.6(i)(2).

Concern:

The Task Force is concerned that the Administrator’s burden of proof is insufficient to protect the interests of both a judge who is the subject of a hearing and the judicial system’s ability to function effectively and independently. “Proof by a preponderance of the evidence” is a civil standard that should not apply in a judicial disciplinary proceeding, particularly when removal is a possible sanction.

The Task Force believes that, given the possible sanctions, a more appropriate standard is that a charge of misconduct must be established by “clear and convincing evidence.” This standard has been adopted in a large majority of states. The “clear and convincing evidence” standard was first recommended by NYCLA in 1997 and has been recommended by the ABA for over 30 years. The “clear and convincing evidence” standard is incorporated in Rule 7 of the ABA Model Rules. The commentators to Rule 7 note that:

“Judicial (and lawyer) disciplinary cases are neither civil nor criminal in nature, but are sui generis. ‘Clear and convincing evidence’ is a standard of proof higher than the civil law standard of ‘preponderance of the evidence’ and lower than the criminal standard of ‘beyond a reasonable doubt.’ The standard of proof required to sanction a respondent’s conduct is thus commensurate with the importance of protecting the judicial system’s ability to function–more than required to prove a wrong, less than required to prove a criminal offense.”

Recommendation:

V.11 The Task Force recommends that the standard of proof necessary to support a finding of judicial misconduct before the referee (or hearing panel) be that of “clear and convincing evidence.” This is also the same standard used in many states in attorney disciplinary proceedings. While the Task Force’s mandate does not include the disciplinary committees, it recommends that standard in New York as well for attorney disciplinary proceedings.

Post-hearing Procedure

The respondent is entitled to a copy of the hearing transcript within a “reasonable time” after the hearing. 22 NYCRR § 7000.6(j). Both the respondent and Administrator “may file briefs and proposed findings with the referee no later than four weeks after their receipt of the transcript of the hearing.” 22 NYCRR § 7000.6(k). The referee is charged with submitting a report to the Commission with proposed findings of fact and conclusions of law, but no recommendation may be made with regard to a sanction to be imposed. 22 NYCRR § 7000.6(1). The referee “shall endeavor” to submit the report within 30 days of receipt of the briefs from the Administrator and respondent. Id. A copy of the referee’s report is sent to the respondent. Id. The Commission will entertain a motion to confirm or disaffirm the findings of the referee.

22 NYCRR § 7000.6(f)( 1)(3). Depending on the outcome of that motion, the Commission will consider the referee’s report and entertain further argument. 22 NYCRR § 7000.7(a).

Concern:

The Task Force is concerned that judicial disciplinary proceedings often are not completed as swiftly and efficiently as possible. The terms “reasonable time” (within which the Commission must provide a hearing transcript to the judge) and “reasonable opportunity” (for the Administrator and respondent to present written argument to the referee) are imprecise and should be clarified. Further, that the referee “shall endeavor” to submit a report within 30 days lends itself to possible prolonged delays.

Recommendation:

V.12 The Task Force believes that judicial disciplinary proceedings should be completed as speedily and efficiently as possible for two reasons. First, it is counterproductive to allow a misconduct charge to hang over the head of a sitting judge. Second, it is important to foster a public perception that judicial misconduct will be dealt with swiftly. Because the current regulations do not now contain specific timeframes for all of the following, the Task Force recommends that the regulations governing posthearing procedure be amended to provide for definite timeframes for the production of hearing transcripts, submission of written arguments to the referee (or hearing panel) and submission of the referee’s (or hearing panel’s) report to the Commission.

Part VI: PROBLEMS WITH CURRENT STANDARDS OF CONDUCT

A judge may be sanctioned “for cause, including, but not limited to, misconduct in office, persistent failure to perform his or her duties, habitual intemperance, and conduct on or off the bench, prejudicial to the administration of justice ….” N.Y. Const. Art. VI, § 22(a). See N.Y. Jud. L. § 44(1); see also 22 NYCRR § 7000.9(a). A judge maybe retired “for mental or physical disability preventing the proper performance of his or her judicial duties.” Id.

The Commission uses two standards to evaluate the provisions quoted above. First is “the requirement that judges uphold and abide by the Constitution and laws of the United States and the State of New York . . . “22 NYCRR § 7000.9(b)(1). Second is “the requirement that judges uphold and abide by the Code of Judicial Conduct, the rules of the Chief Administrator and the Rules of the respective Appellate Divisions governing judicial conduct.” 22 NYCRR § 7000.9(b)(2).

Misconduct Warranting Sanctions

Concern:

The Task Force is concerned that Article VI, Section 22 of the New York Constitution (authorizing the sanctioning of a judge “for cause, including, but not limited to, misconduct in office, persistent failure to perform his or her duties, habitual intemperance, and conduct on or off the bench, prejudicial to the administration of justice …”),and the corresponding sections of the Judiciary Law and regulations, are to some extent imprecise and ambiguous. “Misconduct” is a broad term. Further, one Commission member’s notion of “intemperance” may vary significantly from another’s. Whether particular conduct is “prejudicial” to the administration of justice also may be subject to broad interpretation. To the extent that the language is ambiguous and that conduct warranting sanction is “not limited to” that listed, judges may be, at times, uncertain whether a particular course of action might subject him or her to sanctions.

Recommendation:

VI.1 The Task Force believes that the standards for judicial conduct that are set forth in the New York Constitution ideally should be modified to conform to the ABA Model Rules. (Rule 6, “Grounds for Discipline”)

Disability Warranting Mandatory Retirement

Concern:

The Task Force is concerned that Article VI of the New York Constitution, and the corresponding sections of the Judiciary Law and regulations, do not distinguish adequately between sanctions for misconduct and sanctions for retirement “for mental or physical disability preventing the proper performance of… judicial duties.” Thus, it may be difficult to determine whether the Commission should treat a particular complaint as one for misconduct or one for mental or physical disability.

This issue is important because the consequences of misconduct differ from the consequences of disability preventing the proper performance of judicial duties. “Retirement” is defined simply as “a retirement for physical or mental disability preventing the proper performance of judicial duties.” 22 NYCRR § 7000. l(n). There is no authority that allows for temporary retirement, leave of absence or any other provisional period of rehabilitation or inactivity.

Finally, the procedures that govern judicial discipline proceedings do not address specific issues that may arise in retirement proceedings, including confidentiality, inability to properly defend and reinstatement.

Recommendations:

VI.2 The Task Force believes that it would be prudent to have in place certain protocols for matters where disability is an issue. One fundamental change is to distinguish a disability that does not affect a judge’s ability to perform judicial functions, from an incapacity that does, as is recommended in the Model Rules. (See Commentary to Rule 27, “Cases Involving Allegations of Mental or Physical Incapacity.”) The ABA Model Rules approach to incapacity is a sensible one, because it seems fundamental “that incapacity not be treated as misconduct. Willful conduct should be clearly distinguished from conduct that is beyond the control of the judge.” Id.

VI.3 The Task Force believes that more specific changes are also recommended, again as suggested by the ABA Model Rules. First, in cases in which disability or incapacity is reasonably believed to be an issue, the judge and referee (or hearing panel) should agree on at least one qualified medical or psychiatric professional to examine the judge prior to the hearing, and to submit a report to the parties. See id. This procedure may facilitate an agreed statement of facts or stipulated disposition, thus avoiding a full hearing. The procedure will also solve the problem of assigning to a referee (or hearing panel) the task of evaluating the mental or physical incapacity of a judge.

VI.4 In addition, the Task Force feels that confidentiality of incapacity proceedings is of utmost importance, because the proceedings likely will involve medical, psychological or other personal and privileged information. Further, a judge should be able to allege an inability to assist in his or her own defense due to a mental or physical incapacity. A judge should not be forced to choose between alleging an inability to defend and waiving medical confidentiality.

VI.5 Finally, the Task Force believes that retirement, presently the sole possible outcome of a finding of incapacity, does not address the many possible factual situations that may arise in an incapacity proceeding. As provided in ABA Model Rule 27, an equitable disposition may warrant placing the judge on incapacity inactive status. Thus, the Task Force believes that, instead of retirement, it may be appropriate to transfer a judge to such a status. See id. After a specified period of time, a judge should be permitted to petition for reinstatement to active status upon a showing that the incapacity no longer exists.

A table comparing 22 NYCRR § 7000.6 and § 7000.9 with the ABA Model Rules for Judicial Disciplinary Enforcement is attached as Appendix B to this Report.

Part VII: CURRENT COMMISSION PROCEDURES AFTER A HEARING;

CONSIDERATION OF REFEREE’S REPORT OR AGREED STATEMENT OF FACTS

Under current procedures, once the formal written complaint has resulted in an agreed statement of facts (with or without a sanction recommendation), or a referee’s report containing proposed findings of fact and conclusions of law (without any recommendation as to sanction), the matter is submitted to the Commission for its determination. Additionally, the Commission can make a summary determination as a matter of law. 22 NYCRR § 7000.6. The parties are afforded “reasonable opportunity” to submit briefs and oral argument as to the agreed statement of facts, the referee’s report and the appropriate sanction. 22 NYCRR § 7000.7(l)(a)

Standards for Review

While the matter is pending before the Commission, the Administrator and Commission staff who have been involved in the case or in a factually related case do not aid or advise the Commission. 22 NYCRR § 7000.7(l)(b).

The enabling legislation (N.Y. Jud. L. §44(1)) authorizes the Commission to “receive, initiate, investigate and hear complaints” of judicial misconduct, and describes the procedures required for a “hearing” upon a formal written complaint (N.Y. Jud. L. §44(4) at which “the commission may take the testimony of witnesses and receive evidentiary data and material… (id.) “ after which “[t]he commission shall transmit its written determination, together with its findings of fact and conclusions of law and the record of the proceedings upon which its determination is based, to the chief judge of the court of appeals ….” N.Y. Jud. L. § 44(7)). The regulations bifurcate this process, establishing separately the proceedings upon the formal written complaint before a referee (22 NYCRR § 7000.6) and the Commission’s consideration of the referee’s report or the parties’ agreed statement of facts (22 NYCRR § 7000.7).

Section 7000.6, as noted in the preceding section of this Report, requires the Commission staff to prove at the hearing before the referee “by a preponderance of the evidence, the facts justifying a finding of misconduct.” 22 NYCRR § 7000.6(i)(1). The referee’s findings and conclusions must necessarily incorporate that standard in any recommendation for a finding of misconduct. Section 7000.7 as to the Commission’s consideration of the determination by the referee is silent, however, as to the scope of the Commission’s review of the referee’s report and the hearing record upon which it was based and the standard applicable to that review. It is also not clear whether the Commission may make factual findings de novo during its own review of the record.

Concern:

The absence of an articulated standard of review to be employed by the Commission during its consideration of the referee’s (or hearing panel’s) report or agreed statement of facts may, at the very least, create the perception that the Commission’s determinations are arbitrary and inconsistent, if not, in fact, cause its determinations to vary widely.

It would appear that the establishment of standards of the scope and nature of the Commission’s review of the record could be achieved by the Commission through regulatory amendment to Sections 7000.6 and 7000.7, pursuant to its grant of authority under New York Const. Art. 6, § 22(c) and N.Y. Jud. L. § 42(5),(6), without the need for legislative or constitutional action.

Recommendations:

VII.1 The Task Force recommends that the Commission sets forth – perhaps in its Policy Manual – its practice with respect to the standard of review of referee (or hearing panel) reports and agreed statements of facts, as well as its procedures if it makes de novo factual findings during such review.

VII.2 The standard of proof necessary to support a Commission finding of judicial misconduct should be that of “clear and convincing evidence.” This is the same standard called for in Recommendation V.ll for use in a hearing before a referee (or hearing panel).

Sanctions

If the Commission determines that the formal written complaint is not sustained, that the judge’s misconduct has not been established and that no further action is necessary, the Commission dismisses the formal written complaint. 22 NYCRR §000.7(l)(e). If the Commission finds that misconduct is established but that a determination other than admonition, censure, removal or retirement is appropriate, the Commission may issue a private letter of caution to the judge with suggestions as to the conduct in the complaint. 22 NYCRR §000.7(l)(d). Finally, if the Commission determines that a judge who has been the subject of a hearing should be admonished, censured, removed or retired, the Commission transmits its determination, together with its own findings of fact and conclusions of law and the record of the proceedings, to the Chief Judge of the Court of Appeals. 22 NYCRR § 7000.7(l)(c).

Concerns:

The Subcommittee received many comments, including some from persons formerly affiliated with the Commission, suggesting that the absence of additional, intermediate sanctions between censure and removal unfairly limited the Commission’s choice of punishments, resulting in some dispositions that were disproportionately harsh or lenient for the misconduct in question. Apparently, the Commission originally had the power to recommend suspension of a judge, but a former Chief Judge persuaded the Legislature to eliminate it. Further, as discussed in Section VI of this Report dealing with 22 NYCRR § 7000.9, the lack of appropriate sanctions addressing misconduct arising from a judge’s mental disability creates an unduly limited choice in sanctions for the Commission in such cases.

Recommendations:

VII.3 The range of sanctions to be imposed for judicial misconduct should be expanded beyond the current public punishment options of admonition, censure, removal and retirement (Const. Art. 6, §22(a); N.Y. Jud. L. §44(7); 22 NYCRR § 7000.7(c), (d)), and referral to the attorney grievance committee of the Appellate Division for removal or suspension from the practice of law (N.Y. Jud. L. § 44(10)), to include intermediate sanctions that would address a wider range of misconduct and that would more proportionately reflect the nature and extent of the misconduct in question, as well as the addition of an incapacity inactive status to accommodate cases involving mental or physical incapacity.

VII.4 A recommendation favored by the Task Force and found in the ABA Model Rules is a final determination of suspension by the Court of Appeals. (See Rule 6, “Grounds for Discipline; Sanctions Imposed; Deferred Discipline,” at 1.) The Task Force noted with approval the Commission’s recommendation in its 2009 Annual Report for the Governor and Legislature to consider a constitutional amendment to provide for suspension without pay as an alternative sanction.

VII.5 Another recommendation is to formalize one of the Commission’s current ad hoc policies, a deferred discipline agreement, under which the judge would agree to “undergo treatment, participate in education programs or take other corrective action” as a result of incidents of minor misconduct. (Id, at 1-2).

These changes would require amendment of the provisions of the Constitution, Judiciary Law and regulations cited above.

CONCLUSION

While the Task Force urges the implementation of the recommendations contained in this Report, it expects to consider other issues relating to the Commission in the future.

Subcommittee on the Commission on Judicial Conduct

Hon. Marcy L. Kahn and Klaus Eppler, Co-Chairs

Stewart D. Aaron

Hon. Betty Weinberg Ellerin

Stephen D. Hoffman

Norman L. Reimer

Task Force on Judicial Independence

Hon. Betty Weinberg Ellerin and Norman L. Reimer, Co-Chairs

and

Stewart D. Aaron

Zachary W. Carter

Professor Oscar Chase

Jan Constantine Richard D. Emery*

Stephen D. Hoffman

Hon. Marcy L. Kahn

James B. Kobak Jr.

Hon. Joseph Kevin McKay

Ann B. Lesk

Hon. Shira A.

Catherine O’Hagan Wolfe

Hon. James A Yates

Staff

Marilyn J. Flood

Appendix A

COLUMBIA CASUALTY COMPANY

MASTER JUDGES PROFESSIONAL LIABILITY INSURANCE POLICY
OFFICE OF COURT ADMINISTRATION OF NEW YORK STATE UNIFIED COURT SYSTEM DEFENSE ONLY OF CLAIMS BY NEW YORK STATE COMMISSION ON JUDICIAL CONDUCT

Words and phrases that appear in bold type are defined farms and the reader should refer to Sections II and V of the policy.

NOTICE: This is a claims made and reported policy. Except to such extent as may otherwise be provided herein, the coverage afforded under this insurance policy is limited to claim expanses only for those claims that are first made against the Insured and reported to Columbia Casualty Company (hereafter the Company”) while this policy is in force. Please review the coverage afforded under this insurance policy carefully and discuss the coverage hereunder with your insurance agent or broker.

DEFENSE ONLY COVERAGE

Covered Claim Expenses

The Company agrees with the policy holder named in the a part hereof to pay on behalf of the Insured those claim expenses incurred in the defense of Covered claim against the Insured by the New York State Commission on Judicial Conduct (herafter “Commission”) that is first made against the insured and reported to the Company during the policy period or extended reporting period arising out of any act, error or omission of the insured provided that

such acts, errors Of Omissions takes place prior to the end of the policy period;
the Insured did not give notice to any prior insurer of any such act, error or omission, and
the Insured hand no reasonable basis to believe that any such act, error or omission might reasonably be expected to be the basis of a claim,

A claim is first made against the Insured during the policy period or extended reporting period if during the policy period or extended reporting period the Insured receives written notification from the Commission of a claim against the Insured by the Commission.

Defense of Claims

With respect to any covered claim:

the Company shall have the right and duty to defend in the Insured’s name and on the Insured’s behalf such claim even if any of the allegations of the claim are groundless, false or fraudulent;
the Company shall have the right to appoint counsel and to make such investigation and defense of any such claim, as it deems necessary;
no claim will he resolved without the written consent of the Insured.

The Limit of Liability of this policy is limited to payments of claim expenses. In the event that the Limit of Liability hereunder is exhausted, the Company shall have the right to withdraw from the further defense or Investigation of such claim by tendering control of such defense or investigation to the Insured.

INSURED

Each of the following is an Insured under this policy

any person Who is an active and sitting Judge at the inception of the policy period, and
any person who. During the policy period, becomes a Judge.

LIMIT OF LIABILITY AND DEDUCTIBLE

The Limits of Liability of this policy apply separately to each Insured and shall apply only to claims expense incurred in defending actions or investigations brought by the Commission.

The Limit of Liability stated in Item 3. A of the Declarations as -applicable to each claim is the limit of liability for all claims expense of a single Insured arising out of the same or related acts, errors or omissions Without regard to the number of claim, demands, investigations, proceedings or claimants.

The Limit of Liability stated in Item 3 B of the Declarations as annual aggregate is, subject to the above provisions respecting Item 3. A of the Declarations, the total limit of liability for all claims expanse arising out of all claims of a single Insured during the policy period or during the extended reporting period.

If related claims are subsequently made against such Insured and reported to the Company, all such related claims, whenever made, shall be considered a single claim first made against said Insured and reported to the Company within the policy period or any extended reporting period which earliest of the related claims was first made against said Insured and reported to the Company

There shall be no deductible applicable to any claim under this policy

EXCLUSIONS

This policy does not apply to any claim

where the act, error or omission which is the subject of such claim is also the subject of a separate criminal proceeding. However, the company shall defend any such claim until such act, error or omission has been adjudicated as criminal such separate proceedings

DEFINITIONS

“Adjudicated” means a final decision rendered by a judge or an entry of a plea by the defendant

“Claim” means written notification received by the Insured from the Commission requesting a written response to allegations against the Insured or requiring the appearance of the Insured to provide testimony under oath and the subsequent institution of formal disciplinary proceedings against the Insured by the Commission arising out of the subject matter of the aforementioned written notification received by the Insured from the Commission. If the Commission does not send the aforementioned written notification to the Insured requesting a written response to allegations against the Insured or requiring the appearance of the Insured to provide testimony under oath and instead, institutes formal disciplinary proceedings against the Insured by serving a format written complaint on the Insured, then “claim” means said formal written complaint received by the insured from the Commission.

“Claim expenses” means:

fees charged by an attorney selected by the Company to represent the Insured;

all other fees, costs and expenses resulting from the investigation, adjustment, defense and appeal of a claim arising in connection therewith, if incurred by the Company, or by the Insured with written consent :of the Company provided, however, that claim expenses does not include charges or expenses of employees or officials of the Company.

“Extended Reporting Period” means the period of time after the end of the policy period for reporting claims arising out of acts, errors or omissions occurring prior to the end of the policy parted and otherwise covered by ‘his policy.

“Judge” means any active and sitting Judges of the Court of Appeals, Justices of the Appellate Divisions of the Supreme Court, Justices of the Appellate Terms of the Supreme Court, Justices of the Supreme Court, judges of the County Court, Judges of the Court of Claims, Surrogates of the Surrogates’ Court, Judges of the City Court, Judges of the Family Court, Judges of the District Court, Judges of the Civil Court of the City of New York and Judges of the Criminal Court of the City of New York; but not any Justices of the Town and Village Justice Court.

“Optional Extended Reporting Period” means an extended reporting period opted for by the policyholder upon termination of this policy in accordance with the Extended Reporting Period section set forth herein The optional extended reporting period provides coverage only for those insureds to whom the Company has not issued a death, disability or retirement extended reporting period.

“Policy hold” means the Chief Administrative Judge on behalf of the office of Court Administration of the New York State Unified Court System. This Master Policy provides no coverage to the policyholder

“Policy Period” means the period of time between the inception Shown in the Declarations and the effective date of termination, expiration or cancellation of this policy

“Related Claims” means any claim that arises from the same or related errors or omissions.

Whenever the singular form of a word is used, The shall the plural when required by context.

EXTENDED REPORTING PERIOD

In the event of the death permanent and total disability of an Insured during the policy period preventing further judicial tenure by insured the Insured shall be entitled, at no additional premium, to a six (6) year death or disability extended reporting period for all claims first made after the termination of the policy period, arising out of any act,-error or omission occurring prior to the termination of the policy period and otherwise covered by this policy.

in the event of retirement or termination of judicial tenure during of an Insured the policy period, the insured shall have the right, upon the payment of an additional premium of $500.00 to have issued an endorsement providing a six (6) year retirement extended reporting period for all claims first made after the termination of the policy period, arising out of any act, error or omission occurring prior to the termination of the policy period and otherwise covered by this policy. This right must be exercised by payment of the additional premium within forty-five (45) days of the expiration of the annual policy period in force when the Insured retired or the judicial tenure of the Insured terminated.

In the event of non-renewal of this policy by either the policyholder or the Company, the Company will provide an automatic non-cancelable ten (10) day period from the end of the annual policy period, at no additional coat, to allow an Insured to report claims first made against the Insured prior to the termination of the policy. The procedure for reporting such claims by the Insured to the Company shall be the procedure described in the Notice of Claim and Circumstances provision of the policy, which appears at Section VII. C.

In the event of non-renewal of this policy by the Company, the policyholder shall have the right. upon the payment within thirty (30) days of such termination of an additional premium of 100% of the annual premium set forth in Item 5 of the Declarations, to have issued an endorsement providing a twelve (12) month optional extended reporting period for ail claims first made after the termination of the policy period arising out of any acts, errors or omissions occurring prior to the termination of the policy and otherwise covered by the policy.

The applicable Limit of Liability for any extended reporting period shall be part of and not in addition to, the Limit of Liability of the Company for the policy period

At the commencement of either the optional extended reporting period or the retirement extended reporting period, the entire premium for such shall be deemed fully earned. In the event that the policyholder terminates the optional extended reporting period for any reason prior to its natural expiration, the Company will not be liable to return any premium paid for the optional extended reporting period. In the event that the Insured terminates the retirement extended reporting period for any reason prior to its natural expiation, the Company will not be (‘able to return any premium paid for the retirement extended reporting period

CONDITIONS

Policy Territory / Claims Made and Reported Provisions

This policy applies to acts, errors or omissions occurring anywhere in the world

provided that those acts, errors or omissions occur anytime prior to the policy period; and

further provided that the claim is first made against the insured the united States of America, its territories or possessions or Canada, during the policy period or ah extended reporting period purchased in accordance with Section.vi and

further provided that the claim is reported Company during the policy period or extended reporting period issued in accordance with section VI.

Other Insurance

If She Insured has other insurance Paying Claim expenses covered by this policy, the Company shall not be liable under this policy For a greater prop[osion of such claim expenses than the applicable Limit of Liability stated in the Declarations bears total applicable Limit of Liability of all valid and collectible insurance paying such claim expenses.

Notice of Claim and Circumstances

If a claim is made against the Insured, the Insured shall immediately provide written notice to the Company at the following address:

Vice President of Lawyers / Judges Professional Liability Claims

CNA Insurance Companies

40 Wall Street

New York, NY 10005

or to its authorized agent, and provide copies of written communications from the Commission and copies of every demand, notice, summons or other process received by the Insured.

if, during the policy period, the Insured becomes aware of any act, error or omission that might lead to a claim or could reasonably be expected to be the basis of a claim covered hereunder, the Insured shall immediately give written notice to the Company, at the address stated in Section VII, C, 1 above or to –its authorized agent, of such act, error or omission and the reasons for anticipating a claim, with full particulars, including but not limited to:

(a) the specific act, error or omission;

(b) the dates and persons involved;

(d) the circumstances by which the Insured first became aware of the possible claim, and then any such claim that is subsequently made against the Insured and reported to the Company during this policy period or any renewal policy period or any extended reporting period shall be deemed to have been made at the time such written notice was given to the Company.

Assistance and Cooperation of the Insured

The Insured shall cooperate with the Company, including providing all information requested by the Company regarding the claim, and, upon the Company’s request, the Insured shall attend hearings scheduled by (he Commission, assist in securing and giving evidence and obtaining the attendance of witnesses.

Action against the Company

No action shall lie against the Company unless, as a condition precedent thereto, the Insured shall have fully complied with all of the terms of this policy.

Bankruptcy or Insolvency of the Insured or of the Insured’s estate shall not relieve the Company of any of their obligations hereunder.

Changes

Notice to any agent of the Company or of the Company shall not effect a waiver or a change in any part of this policy or estep me asserting any right under the terms of this policy; nor shall the terms of this policy be waived or changed except by endorsement issued to form a part of this policy, signed by a duly authorized representative of the Company.

Assignment

The interest hereunder of any insured is not assignable.

Cancellation

This policy may be canceled by the Company only if the policyholder fails to pay a premium when due by mailing to the policyholder, at the address shown in the policy, written notice stating when, not less than (10) days thereafter, such cancellation shall be effective.

The mailing of notice as aforesaid shall be sufficient proof of notice. The effective date of cancellation stated in the notice by the Company shall become the end of the policy period. Delivery of such written notice by the Company shall be equivalent to mailing.

Authorized Representative

The policyholder is the duly authorized representative of each Insured and will have responsibility for ail administrative issues concerning this policy including, but not limited to, payment of the premium, execution of any required application and changes or alterations of the policy terms, conditions and limitations as well as she extension or termination of the coverage afforded hereunder. The policyholder shall notify the insureds of any change to policy terms or conditions or any rights or obligations the Insureds have under this policy.

Conformance to Statute

Terms of this policy, which are in conflict with the statures of the state controlling, are hereby amended to conform to such statutes.

This policy shall be construed in accordance with the internal laws of the Stats of New York

Estates, Legal Representatives and Spouses

While not within the defintion of Insured, the estates, heirs, legal representatives, assigns and spouses of Insureds are covered under this policy provided, however, such coverage is afforded to such estates, heirs, legal representatives, assigns and spouses only for a claim but only to the extent such Insureds would have been afforded coverage.

Service of Suit

It is agreed that in the event of the failure of the Company to pay any amount claimed to be due under this insurance, the Company, at the request of the Insured, will submit to the jurisdiction of a court of competent jurisdiction within the United States, This Condition does not constitute and should not be understood to constitute an agreement by the Company that an action is property maintained in a specific forum, nor may it be construed a waiver of the Company’s rights to commence an action in a court of competent jurisdiction in the united States, to remove an action to a United States District Court, or to seek a transfer of a case another court as permitted by the laws of the United States or of any State of the united States all of which rights the Company expressly reserves. It is further agreed suit may be made upon CNA’s General Counsel at CNA Plaza Chicago (not readable), 60658 and that in any suit instituted against it upon this contract, the Company the final decision of such court or of any appellate court in the event of an appeal

Further, pursuant to of any state or district of the United States which makes provision therefor, the company hereby designated the Superintendent, Commissioner or Director of Insurance or other Officer specified for that purpose in the statute or his/her successor or successors in office as its true and lawful attorney upon whom may be served any lawful process in any, action suit or proceeding instituted by or on behalf of the Insured or any beneficiary ‘ hereunder arising out of this contract of insurance, and hereby designate CNA’s General Counsel as the person whom said officer is authorized to mail such process or a true copy thereof.

Entire Contract

By acceptance of this policy, the policyholder agrees that the policy is issued in reliance upon the truth of the statements and representations in any applications of the insureds, and that this policy embodies all agreements existing between the policyholder and the Company relating to this insurance.

IN WITNESS WHEREOF, the Company has caused this Policy to be executed by its Chairman and Secretary, but this Policy shall not be binding upon the Company unless completed by the attachment of the Declarations and signed by a duly authorized representative of the Company.

Chairman

Secretary

	N.Y. Comp. Codes R. regs.til. *22,* § 7000.6.(1978) Procedure upon a formal written Compliant	ABA Model Rules for Judicial Disciplinary Enforcemant (1994)
1. Applicable law.	(a) Applicable law. If the commission determines that a hearing is warranted, the procedures to be followed are those set forth in section 44, subdivision 4, of the Judiciary Law. (See “Hearings” infra.)	(See “Hearings” infra.)
2. Answer.	(b) Answer. A judge served with a formal written complaint shall serve his answer, verified by him, within 20 days of service of the formal written complaint. The answer shall contain denials of those factual allegations known or believed to be untrue. The answer shall also specify those factual allegations as to the truth of which the judge lacks knowledge or information sufficient to form a belief, and this shall have the effect of a denial. All other factual allegations in the charges are deemed admitted. The answer may also contain affirmative and other defenses, and may assert that the specified conduct alleged in the formal written complaint is not improper or unethical. Failure to answer the formal written complaint shall be deemed an admission of its allegations.	Rule 20. Answer. Time. The respondent shall file a written answer with the commission and serve a copy on disciplinary counsel within [20] days after service of the formal charges, unless the time is extended by the hearing panel. Waiver of Privilege. The raising of a mental or physical condition as a defense constitutes a waiver of medical privilege pursuant to Rule 27. D(4). Rule 21. Failure to Answer/Failure to Appear. Failure to Answer. Failure to answer the formal charges shall constitute an admission of the factual allegations. Failure to Appear. If the respondent shall fail to appear when specifically so ordered by the hearing panel of the highest court, the respondent shall be deemed to have admitted the factual obligations which were to be the subject of such appearance and to have conceded the merits of any motion or recommendations to be considered at such appearance. Absent good cause, the hearing panel or highest court shall not continue or delay proceedings because of the respondent’s failure to appear.
3. Summary determination.	(c) Summary determination. Either party may move before the commission for a summary determination upon all or part of the issues being adjudicated, if the pleadings, and any supplementary materials, show that there is no genuine issue as to any material fact and that the moving party is entitled to such decision as a matter of law. If a summary determination is granted, the commission shall provide reasonable opportunity for submission of briefs and oral argument with respect to possible sanctions.	There is no analogue, but sec Rule 8: Civil Rules Applicable. :
4. Agreed statement of facts.	(d) Agreed statement of facts. Subject to the approval of the commission, the administrator and the respondent may agree on a statement of facts and may stipulate in writing that the hearing shall be waived. In such a case, the commission shall make its determination upon the pleadings and the agreed statement of facts.	There is no analogue, but see Rule 23; Discipline By Consent.
5. Subpoenas.	(e) Subpoenas. The judge who is the subject of a formal written complaint may request the referee designated by the commission to issue subpoenas on the judge’s behalf. The referee shall grant reasonable requests for subpoenas.	Rule 14. Subpoena Power. Oaths. Oaths and affirmations may be administered by any member of the commission, disciplinary counsel in matters under full investigation or any other person authorized by law. Subpoenas for Investigation. After a full investigation is authorized pursuant to Rule 17.B.(3)., disciplinary counsel may compel by subpoena the attendance of the judge or witnesses and the production of pertinent books, papers and documents at a deposition or hearing held under these Rules. Subpoenas for Deposition or Hearing. After formal charges are filed, disciplinary counsel and respondent may compel by subpoena the attendance of \| witnesses and the production of pertinent books, papers I and documents at a deposition or hearing held under these rules. Enforcement of Subpoenas. Upon proper application, the {appropriate court of general jurisdiction of the circuit, county or city} in which the attendance or production is required may enforce the attendance and testimony of any witness and the production of any documents subpoenaed. Quashing Subpoena. Any attack on the validity of a subpoena shall be heard and determined by the investigative or hearing panel j before which the matter is pending or by the court wherein j enforcement of the subpoena is being sought. Any j resulting order is not appealable prior to entry of a final order in the proceeding. Witnesses and Fees. Subpoena fees and costs shall be the same as those provided for in proceedings in the {appropriate court of general jurisdiction}.
6. Motions.	(f) Motions. The commission shall decide: (i) a motion for summary determination; (ii) a motion to dismiss; (iii) a motion to confirm or disaffirm the findings of the referee; and (iv) a motion made prior to the appointment of the referee, except that the commission may refer such motion to the referee when such referral is not inconsistent with the other provisions of this section. The referee designated by the commission shall decide all other motions. In deciding a motion, the commission members shall not have the aid or advice of the administrator or commission staff who has been engaged in investigative or prosecutive functions in connection with the case under consideration or a factually related case. Motions to dismiss a formal written complaint must be made within 30 days of service. Motions for the disqualification of a referee are to be made to that referee within 10 days of the parties being notified of the designation of a referee. Motions for reconsideration of a commission determination must be made within 30 days of service of the determination upon respondent. If the motion is based on newly discovered evidence, the moving party must demonstrate that the proffered evidence, if introduced: (i) would probably have resulted in a different determination; and (ii) could not have been discovered in time to introduce at the hearing or otherwise be properly before the commission prior to the rendering of a determination. The commission reserves the authority to direct a hearing before a referee for the purpose of evaluating newly discovered evidence. Moving parties shall obtain a return date from the clerk for all motions to be decided by the commission.	There is no analogue, but see Rule 8; Civil Rules Applicable.
7. Hearings.	(g) Hearings. The referee shall set a prompt, hearing date, regulate the course of the hearing, make appropriate rulings, set the time and place for adjourned or continued hearings and, consistent with subdivisions (k) and (1) of this section, fix the time for the filing of briefs and other documents, and shall have such other authority as specified by the commission, not inconsistent with the provisions of article 2-A of the Judiciary Law. N.Y. Jud, Law § 44 (McKinney 1978) 4. If in the course of an investigation, the commission determines that a hearing is warranted it shall direct that a formal written complaint signed and verified by the administrator be drawn and served upon the judge involved, either personally or by certified mail, return receipt requested. The judge shall file a written answer to the the [sic] complaint with the commission within twenty days of such service. If, upon receipt of the answer, or upon expiration of the time to answer, the commission shall direct that a hearing be held with respect to the complaint, the judge involved shall be notified in writing of the date of the hearing either personally, at least twenty days prior thereto, or by certified mail, return receipt requested, at least twenty-two days prior thereto. Upon the written request of the judge, the commission shall, at least five days prior to the hearing or any adjourned date thereof, make available to the judge without cost copies of all documents which the commission intends to present at such hearing and any written statements made by witnesses who will be called to give testimony by the commission. The commission shall, in any case, make available to the judge at least five days prior to the hearing or any adjourned date thereof any exculpatory evidentiary data and material relevant to the complaint. The failure of the commission to timely furnish any documents, statements and/or exculpatory evidentiary data and material provided for herein shall not affect the validity of any proceedings before the commission provided that such failure is not substantially prejudicial to the judge. The complainant may be notified of the hearing and unless he shall be subpoenaed as a witness by the judge, his presence thereat shall be within the discretion of the commission. The hearing shall not be public unless the judge involved shall so demand in writing. At the hearing the commission may take the testimony of witnesses and receive evidentiary data and material relevant to the complaint. The judge shall have the right to be represented by counsel during any and all stages of the hearing and shall have the right to call and cross-examine witnesses and present evidentiary data and material relevant to the complaint. A transcript of the proceedings and of the testimony of witnesses at the hearing shall be taken and kept with the records of the commission.	Rule 24. Hearing. Scheduling. Upon receipt of the respondent’s answer or upon i expiration of the time to answer, the hearing panel of the commission shall schedule a public hearing and notify disciplinary counsel and respondent of the date, time and place of the hearing. Hearing Panel. The hearing shall be conducted by the hearing panel of the commission, a subpanel of the hearing panel or a hearing officer. See Rule 3.E. Conduct of Hearing. All testimony shall be under oath. Disciplinary counsel shall present evidence on formal charges. Disciplinary counsel may call the respondent as a witness. Both parties shall be permitted to present evidence and produce and cross-examine witnesses. The hearing shall be recorded verbatim. Whenever a transcript is requested by respondent, disciplinary counsel, a member of the hearing panel or the highest court, a transcript of the hearing shall be produced promptly and shall be provided to the respondent without cost. Disciplinary counsel and the respondent may submit proposed findings, conclusions and recommendations for sanction or order of dismissal to the hearing panel. If a subpanel or hearing officer is used, the findings are to be submitted to the hearing panel.
8. Discovery.	(h) Discovery. (1) Upon written request of the respondent, the administrator shall, at least 10 days prior to the hearing, or any adjourned date thereof, make available without cost copies of all documents which the administrator intends to present at such hearing, a list of witnesses the administrator Intends to call to give testimony and any written statements made by witnesses who will be called to give testimony by the administrator. The administrator shall, in any case, make available to respondent at least 10 days prior to the hearing or any adjourned date thereof, any exculpatory evidentiary data, and material relevant to the formal complaint. The failure of the commission to furnish any documents, statements and/or exculpatory evidentiary data and material provided for herein shall not affect the validity of the proceedings before the commission, provided that such failure is not substantially prejudicial to the judge. (2) Upon written request of the administrator, respondent shall, at least 5 days prior to the hearing or any adjourned date thereof, make available to the administrator without cost copies of all documents that respondent intends to present at such hearing, a list of witnesses respondent intends to call to give testimony and any ‘written statements made by witnesses who will be called to give testimony by respondent.	Rule 22. Discovery. j A. A.Witnesses. Within [20] days of the filing of an answer, disciplinary counsel and respondent shall exchange the names and addresses of all persons known to have knowledge of the relevant facts. Disciplinary counsel or the respondent may withhold such information only with permission of the chair of the hearing panel or the chair’s designee, who can I authorize withholding of the information only for good j cause shown, taking into consideration the materiality of the information possessed by the witness and the position the witness occupies in relation to the judge. The chair’s review of the withholding request is to be in camera, hut disciplinary counsel must advise respondent of the request j without disclosing the subject of the request. The hearing panel shall set a date for the exchange of the names and addresses of all witnesses the parties intend to call at the hearing. Disciplinary counsel and respondent may take j depositions only of witnesses to be called at the hearing and other witnesses who are unavailable to testify. Depositions of other persons may be taken only with permission of the chair of the hearing panel or the chair’s j designee and only for good cause shown. Other Evidence. Disciplinary counsel and respondent shall exchange: non-privileged evidence relevant to the formal charges, documents to be presented at the hearing, witness j statements and summaries of interviews with witnesses who will be called at the hearing; and other material only upon good cause shown to the chair of the hearing panel. Exculpatory Evidence. Disciplinary counsel shall provide respondent with exculpatory evidence relevant to the formal charges. Duty of Supplementation. : Both parties have a continuing duty to supplement information required to be exchanged under this Rule. Completion of Discovery. All discovery shall be completed within [60] days of the filing of the answer. Failure to Disclose. The hearing panel may preclude either party from calling a witness at the hearing if the patty has not provided the opposing party with the witness’s name and address, any j statements taken from the witness or summaries of any j interviews with the witness. Resolution of Disputes. Disputes concerning discovery shall be determined by the hearing panel before whom the matter is pending. The decisions of the hearing panel may not be appealed before the entry of the final order. H. Civil Rules Not Applicable. Proceedings under these Rules are not subject to the {state rules of civil procedure} regarding discovery except those rules relating to depositions and subpoenas.
9. Burden of proof and rule of evidence and procedure at hearing.	(i) Burden of proof and rules of evidence at hearing. The attorney for the commission has the burden of proving, by a preponderance of the evidence, the facts justifying a finding of misconduct. At the hearing, testimony may be taken and evidentiary data and material relevant to the formal written complaint may be received. The rules of evidence applicable to nonjury trials shall be followed	Rule 7. Proof. Charges of misconduct and grounds for transfer to and from incapacity inactive status shall be established by clear and convincing evidence. The burden of proof in proceedings seeking transfer from incapacity inactive status is on the judge. Rule 8. Civil Rules Applicable. Except as otherwise provided in these Rules, the {rules of evidence applicable to non-jury civil proceedings} and the {rules of civil procedure} apply in judicial discipline cases.
10. post-hearing procedures.	(j) Post-hearing procedures. Within a reasonable time following a hearing, the commission shall furnish to the respondent, without cost, a copy of the transcript of the hearing (k) The respondent who is the subject of the hearing, and the administrator, shall be afforded a reasonable opportunity to submit to the referee written argument on issues of law and fact. The respondent and the administrator may file briefs and proposed findings with the referee no later than four weeks after their receipt of the transcript of the hearing. For good cause, the referee may grant a reasonable extension or shorten the period. (1) The referee shall submit a report to the commission with proposed findings of fact and conclusions of law. No recommendation shall be made with respect to a sanction to be imposed by the commission. The referee shall endeavor to submit such report: (1) no later than 30 days after receipt of the briefs referred to in subdivision (k) of this section, or (2) no later than 30 days after failure to [sic] the respondent or the administrator to file such brief within the time prescribed in subdivision (k) of this section. A copy of the referee’s repost shall be sent to the respondent. (m) Following service of a formal written complaint upon the respondent, the respondent may request and authorize in writing that a copy of any determination filed by the commission with the Chief Judge of the Court of Appeals and served by the Chief Judge upon the respondent pursuant to section 44, subdivision 7, of the Judiciary Law, and a copy of any correspondence sent by the Chief Judge to the respondent, be forwarded by the Chief Judge to respondent’s counsel. The commission shall make available to the respondent a form for such request and authorization, N.Y. Jud. Law § 44 (McKinney’s 1978). (9) In its review of a determination of the commission, the court of appeals shall review the commission’s findings of fact and conclusions of law on the record of the proceedings upon which the commission’s determination was based. After such review, the court may accept or reject the determined sanction; impose a different sanction including admonition, censure, removal or retirement for the reasons set forth in subdivision one of this section; or impose no sanction.	Rule 24. Hearing. D. Dismissal or Recommendation for Sanction. The hearing panel shall either dismiss the case or recommend a sanction to the highest court. The hearing panel shall decide a matter only upon the concurrence of a majority of all members of the panel, Submission of the Report. Within (30] days after the hearing or after the filing of the transcript if one was requested, the hearing panel shall file with the highest court: the record of the proceeding and a report setting forth a written summary, proposed findings of fact, conclusions of law, any minority opinions and the order of dismissal or recommendation for sanction. The hearing panel shall at the same time serve the report upon the respondent and disciplinary counsel. Notice of Exceptions. Within [ 10] days of receipt of the hearing panel’s report, the respondent and disciplinary’ counsel may file with the highest court notice of exceptions to the findings, conclusions or recommendations for sanction or order of j dismissal of the hearing panel. The failure to file notice of I exceptions constitutes acceptance of the findings of fact, conclusions of law and order of dismissal or j recommendation for sanction. Notice to {Lawyer Disciplinary Agency}, Whenever the hearing panel recommends the suspension or removal of a respondent, it shall serve a copy of its report on the {lawyer disciplinary agency) at the same j time the report is filed with the highest court. The (lawyer j disciplinary agency} may file with the highest court recommendations for imposing lawyer disciplinary j sanctions on the respondent. Recommendations from the s {lawyer disciplinary agency} shall be filed in a brief in j accordance with Rule 25.B. Rule 25. Review By {Highest Court}. A. Expedited Consideration. (1) The clerk of the court shall docket for expedited; consideration any case in which the commission recommended a sanction or a notice of exceptions was filed. (2) In cases the commission has dismissed to which no exceptions were filed, the dismissal shall be final if the highest court has not ordered a review within f 15] days, Brief and Supplementary Filings, Disciplinary counsel, the respondent and the {lawyer disciplinary agency} if it is entitled to file pursuant to Rule 24.G, shall file briefs as follows: [an expedited schedule should be determined by the highest court and inserted here]. If the highest court desires an expansion of the n\ ord or additional findings, it shall remand the case to the hearing panel with appropriate directions, retain jurisdiction and withhold action pending receipt of the additional filing. The highest court may order additional briefs or oral arguments as to the entire case or specified issues, Stay for Further Proceedings, If during review by the highest court the commission receives another complaint against the respondent the disciplinary counsel shall advise the highest court. The highest court may stay its review pending the commission’s determination of the second complaint. The highest court may impose a single sanction covering all recommendations for discipline from the commission against a respondent. Decision. (1) The highest court shall file a written decision dismissing the case or imposing a sanction. All decisions issued by the highest court shall be published in the official reports for the guidance of other judges and for public information. The highest court may accept, reject or modify’ in whole or in part the findings and conclusions of the; commission. The highest court may assess costs against the respondent if it finds the respondent committed misconduct.
11, Other procedures.	(n) Following appearance of counsel representing a judge in any matter before the commission, at any stage of the proceeding, such counsel may not withdraw as counsel in the matter without the permission of the commission.	There is no analogue.
	N.Y. Comp Codes R. & Regs. Tit .22, §7000.9(1978) Standards of Conduct	ABA Model Rules for Judicial Disciplinary Enforcement (1994)
12. Sanctions.	(a) A judge may be admonished, censured or removed for cause . . .	Rule 6.B. Sanctions. These sanctions may be imposed upon a respondent who has committed misconduct: removal by the highest court; suspension by the highest court; imposition by the highest court of limitations on the performance of judicial duties; imposition of lawyer discipline by the highest court; public reprimand by the highest court. private admonition by an investigative panel of the commission with the consent of the judge, provided that a private admonition may be used in subsequent proceedings as evidence of prior misconduct solely upon the issue of the sanction to be imposed, pursuant to Rule l7.D(l ); and deferred discipline agreement.
13. Conduct; grounds for Dicipline and standards for evaluation & of conduct	… including but not limited to misconduct in office, persistent, failure to perform his duties, habitual intemperance, and conduct on or off the bench, prejudicial to the administration of justice; In evaluating the conduct of judges, the commission shall be guided by: the requirement that judges uphold and abide by the Constitution and laws of the United States and the State of New York; and the requirement that judges abide by the Code of Judicial Conduct., the rules of the Chief Administrator and the rules of the respective Appellate Divisions governing judicial conduct.	Rule 6.A. Grounds for Discipline’ The grounds for discipline are: any conduct constituting a violation of the {code of i judicial conduct} or f rules of professional conduct) or ; other applicable ethics codes; or a willful violation of a valid order of the highest court. commission or panels of the commission in a proceeding under these Rules, a willful failure to appear personally as j directed, or a knowing failure to respond to a lawful j demand from a disciplinary authority. 1
14. Allegations of physical incapacity	(a) or retired for mental or physical disability preventing the proper performance of his judicial duties.	Rule 27. Cases Involving Allegations of Mental or j Physical Incapacity. Initiation of Incapacity Proceeding. Proceedings to Determine Incapacity Generally. j Involuntary Commitment, or Adjudication of Incompetency Inability to Properly Defend in a disciplinary Proceeding. Stipulated Disposition. [Appointment to Fill Vacancy] Reinstatement from Incapacity Inactive Status.