Question: A judge has asked the Ethics Advisory Committee whether a judge is obligated to report criminal conduct of which the judge becomes aware. The judge has also asked whether a judge has an ethical obligation to make available confidential court records, such as juvenile court records, to investigating or prosecuting entities.

Answer: A judge does not have an ethical obligation to report criminal behavior. A judge has an ethical obligation to obey the law and may only disclose confidential information if required or permitted by law.

Discussion: In the opinion request, the judge has provided examples of the type of criminal behavior of which a judge might become aware. For instance, according to the judge, domestic relations and juvenile court judges frequently receive testimony in which parties or witnesses admit to fornication, which is a violation of Utah Code Ann. § 76-7-104, or adultery, which is a violation of § 76-7-103. The judge questions whether there is an ethical obligation to report criminal conduct when those violations "become a matter of civil court record, volunteered and admitted in court proceedings." A related question concerns the ethical obligation to make records available to entities who may investigate and prosecute those crimes.

The Code of Judicial Conduct does not impose an affirmative duty to report illegal activity. The Code encourages judges to report unethical behavior by attorneys and other judges, but there is not an obligation to report criminal activity. Judges would be ethically required to report illegal activity only if a statute imposed this obligation, as child abuse reporting statutes often do.

An argument could perhaps be made that the obligation to maintain the integrity of the judiciary, as stated in Canons 1 and 2, requires a judge to report confessed crimes to ensure that the crimes do not remain un-prosecuted. The Committee has not found any other state which has made this an obligation of the Code and the Committee will not impose this obligation.

At least three other states have directly answered the question of whether a judge must report possible criminal conduct. Each of these states has determined that the Code does not create an obligation to report criminal or potential criminal conduct. See Opinion 86-1 of the Oregon Judicial Conduct Committee; Opinion 86-281 of the Alabama Judicial Inquiry Commission; and Opinion 73 of the Louisiana Committee on Judicial Ethics. Although not asked in the opinion request, these states also determined that a judge is not prohibited from reporting under the Code. A judge is therefore not ethically required to report possible criminal conduct, but if the judge feels compelled to do so, there is nothing that ethically prohibits a judge from reporting.

Although other states have not discussed the specific reasons for their conclusions (other than the explicit language of the Code itself) the Committee finds at lease one practical reason for this finding. A requirement to report illegal activity would impose an obligation to report suspected speeders, jaywalkers and tailgaters. Judges should not be ethically required to report, for example, every person they observe running a red light or a stop sign, although they certainly should not be prohibited from doing so.

Because judges are not required to report illegal conduct, ethical considerations will generally not be an issue in deciding whether judges should make records available. A judge’s ethical obligation is tied to the judge’s legal obligation. If records are public, or records are made accessible to prosecuting entities through statute or rule, then a judge is required to make those records available. If records are not available to the public and are not made available to prosecuting entities through statute or rule, then the judge is ethically obligated to maintain the confidentiality of the records. If a statute or rule gives a judge discretion as to who may have access to records, the judge should weigh the relevant legal considerations in determining whether records should be disclosed.