Opinion 04-47

April 22, 2004

Digest:         A judge who has knowledge that a disbarred attorney has acted as an unlicensed real estate salesman should report the matter to the attorneys grievance committee so that such information is s available in the event application is made for reinstatement to the bar.

Rule:            RPL §442-e; 22 NYCRR 100.3 (D)(2).

Opinion:

         The inquiring judge presided over a case in which the plaintiff sought commissions as an unlicensed salesman for services rendered to defendant, a licensed real estate broker. As stated by the judge, the plaintiff is a disbarred attorney and “not a licensed real estate salesman but, upon being hired by the defendant, he assumed the duties of a real estate salesman and handled real estate transactions. This conduct appears to be a violation of the licensing statute. RPL §§440-a, 442-e; 1922 Op. Atty. Gen. 163, Bendell v. DeDominicus, at 308-311.” The judge seeks the Committee’s opinion as to the judge’s responsibilities under these circumstances.

         Section 100.3(D)(2) of the Rules Governing Judicial Conduct requires 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.” Here, of course, the party involved is no longer an attorney. Nevertheless, attorneys who have been disbarred may apply for reinstatement to the bar. Since the conduct of the plaintiff might well bear on his/her fitness to serve as an attorney, it would under those circumstances, be advisable for the judge to report the matter to the appropriate attorneys grievance committee. Presumably, the information provided will then have become a matter of record to be disclosed in the event such an application is made.

         Whether a further report should be made to the Department of State, the licensing authority, is, we believe, a matter for the exercise of discretion by the judge. While it may be that acting in breach of the licensing statutes constitutes either a misdemeanor or violation under section 442-e of the Real Property Law, it appears from the materials provided that the plaintiff has acknowledged to the Department of State that he does not have and never did have a license to sell real estate. Whether further action is required by the judge under these circumstances is entirely within the judge’s discretion.