Opinion 02-129

January 23, 2003

Digest:         Under the circumstances, the particular claim of attorney misconduct being made by a litigant should be forwarded to the local Attorney Grievance Committee

Rule:            22 NYCRR 100.3(D)(2); Opinion 97-84 (Vol. XVI).

Opinion:

         The inquiring judge had presided over an infant malpractice action. Prior to trial a demand was made by the plaintiff to settle the case for $2,000,000. The defendants offered $1,000,000 to settle the case at a pre-trial conference. The case subsequently went to trial and the jury returned a verdict of $330,000. Eight months later a letter was sent to the judge by the infant’s mother stating that the parents were never informed of any offer of settlement either before or during trial. It was only after the trial, months later, that the parents confronted the attorney about any offer, claiming that they never had any knowledge of it having been made. The parents have now requested a meeting with the judge. The judge has forwarded the letter to the attorneys for plaintiff and defendant and seeks the Committee’s advice as to how next to proceed.

         At issue is the extent of the judge’s obligations under section 100.3(D)(2) of the Rules Governing Judicial Conduct, which states that “A judge who receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Code of Professional Responsibility shall take appropriate action.” 22 NYCRR 100.3(D)(2). As explained in Opinion 97-84 (Vol. XVI), whether dealing with allegations of judicial or attorney misconduct, the determination of whether there has been a “substantial violation” i.e., a violation of an ethical rule implicating fitness to serve, or merely a technical violation, must be made by the judge himself or herself.

          Here, of course, the judge has no knowledge of what occurred other than what was stated in chambers prior to trial. That is, the judge does not know whether any offer was conveyed and thus is not in a position to determine whether there has been an ethical violation, substantial or otherwise. But the question of misconduct has been raised and is before the judge. The judge, however, is not an investigator nor is he/she an advisor to the plaintiff. Moreover, the judge could be a witness should a proceeding take place involving the allegation.

         Taken as a whole, these facts lead us to the conclusion that the best course of action is for the judge to forward to the appropriate Attorney Grievance Committee the letter of plaintiff, together with any other correspondence involving the matter. Copies of any letter of conveyance to the Grievance Committee should be sent to the parents, and the attorneys for both sides.