Opinion 04-116

October 28, 2004

NOTE: Please refer to Opinion 10-85 and its progeny for updated guidance on a judge's disciplinary responsibilities under Section 100.3(D)(2). For exaxmple, Opinion 10-85 notes that "the Committee has come to believe that its prior use of the phrase 'substantial violation' as a defined term or term of art may be confusing." Also, as stated in Opinion 23-242, footnote 2: "To the extent that Opinion 04-116 says a judge must report an ex-client's allegations against their former attorney 'unless the judge concludes that the letter is without credibility,' that standard has been abrogated over the past twenty years."

Digest:         Where a judge receives a letter containing detailed allegations of misconduct by an attorney, from the attorney’s former matrimonial client, claiming that harassing telephone calls and mail were received and that there was sexual activity between the attorney and the client, the judge should refer the letter to the appropriate lawyers’ disciplinary authority and so notify the letter writer of the action taken.

Rules:          22 NYCRR 100.3(D)(2); Opinion 90-74 (Vol. V).

Opinion:

         An individual wrote a letter to a judge seeking the judge’s assistance in bringing an end to alleged misconduct on the part of an attorney who represented the individual in a matrimonial matter. (To the best of the judge’s knowledge, the judge was not involved in that matter). The allegations include sexual activities between the attorney and the writer as well as conduct by the attorney both by telephone and by mail that may constitute harassment. The judge asks the Committee for advice on how to respond to the letter and as to any further steps the judge should take in light of the allegations concerning the attorney’s conduct.

         Pursuant to section 100.3(D)(2) of the Rules Governing Judicial Conduct, “[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.” With respect to potential misconduct by attorneys, this Committee has advised that the Committee

. . . is not authorized to construe the Code of Professional Responsibility that binds attorneys, nor to determine whether an attorney’s specific conduct does or does not breach that Code. The Committee can only reiterate the general principle it has stated previously, that a judge who becomes aware of troublesome conduct by an attorney, must determine whether, in the judge’s opinion, such conduct violates professional ethics, and if so, whether the violation is substantial, in which case the judge should report the violation. However, the judge must personally determine whether the attorney’s conduct probably constitutes a substantial violation. Opinion 90-74 (Vol. V).

         Given the facts of the present inquiry, unless the judge concludes that the letter is without credibility, it is the Committee’s view that the judge should refer the letter to the appropriate lawyers’ disciplinary authority and should so notify the letter writer of the action taken.