Opinion 02-85

September 4, 2003

Digest:         Whether, on the facts presented, the altering of a copy of a stipulation of settlement by the attorneys involved requires reporting the matter to the appropriate attorney disciplinary committee is to be determined by the judge.

Rules:          22 NYCRR 100.3(D)(2). Opinions 98-95 (Vol. XVII); 98-65 (Vol.XVII); 97-84 (Vol. XVI).

Opinion:

         A judge of the Housing Court in New York City seeks the advice of the Committee concerning his/her obligation, if any, to report to the attorney disciplinary committee two attorneys who had appeared before the judge for conduct involving an altered copy of a stipulation of settlement that had been signed by the judge.

         It appears that immediately following the signing of the stipulation by the judge, and outside the courtroom, the attorneys added language requiring the tenants to move from the premises in six days. (Language to that effect had been in the original stipulation that was rejected by the judge.) Signatures to the new language were affixed on the tenant’s copy of the stipulation below the signature of the judge. The judge’s stamp does not appear on the stipulation containing the additional language.

         At issue is the applicability of section 100.3(D)(2) of the Rules Governing Judicial Conduct which provides 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). Essentially, as the Committee has repeatedly stated, the determination of whether there is a substantial likelihood of a substantial violation rests with the judge. See, Opinions 98-95 (Vol. XVII); 98-65 (Vol. XVII); 97-84 (Vol. XVI). This does not mean that guidance can never be provided. If, for example, the judge concludes that, the attorneys involved engaged in a deliberate deception intended to perpetrate a fraud and deceive the parties and/or the court as to whether the additional language was now an order of the court, the appropriate action is clear: the matter should be reported to the attorney disciplinary committee. If, on the other hand, the judge concludes that the action taken by the attorneys, albeit improper, was not intended to deceive the parties and/or the court and do not disclose a lack of fitness to serve as attorneys, the course to be taken by the judge is discretionary. Whether this would involve reporting it to the disciplinary committee, or a judicial reprimand, or possible sanctions, if available, is for the judge to determine. The Committee, based on what is before it, reaches no conclusion in this regard, other than to articulate the guidelines stated.