Opinion 04-74

June 3, 2004

NOTE: Please refer to Opinion 10-85 for updated guidance on a judge's disciplinary responsibilities under Section 100.3(D)(2).  In connection with the present opinion, the Committee further noted 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."

Digest:         A judge must report an attorney’s alleged misconduct to appropriate disciplinary authorities if the conduct constitutes a substantial violation of Code of Professional Responsibility. If the alleged misconduct is not a substantial violation of the Code, whether to report the conduct is within the judge’s discretion.

Rules:          22 NYCRR 100.3(D)(2); Opinions 89-54 (Vol. III); 89-74 (Vol. IV );89-75 (Vol. IV); 89-99 (Vol. IV ); 91-114 (Vol. VIII); 98-95 (Vol. XVII).

Opinion:

         While presiding over a lawsuit involving a fee dispute between an attorney and the attorney’s former client in a criminal matter, a judge learned that initially the attorney had been assigned by another court to represent the former client in the criminal matter and then subsequently agreed to represent the defendant in the criminal matter for a fee. The inquiring judge indicates that the attorney never asked the assigning court to be relieved from the assignment, never informed the assigning court that the client had the ability to pay and wished to retain the attorney, and never secured approval from the assigning court to accept a retainer. The judge asks whether the judge must report the attorney’s conduct to the appropriate disciplinary authority.

         Pursuant to 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.” 22 NYCRR 100.3(D)(2). In previous opinions concerning alleged misconduct of attorneys, this Committee has advised that a judge must evaluate the attorney’s conduct to determine if, in the judge’s opinion, the attorney has substantially breached the Code of Professional Responsibility (Code). If the judge concludes that the attorney’s conduct is a substantial violation of the Code, the judge must report the attorney’s conduct to appropriate disciplinary authorities. If however, the judge concludes that the attorney’s conduct is not a substantial violation of the Code, the judge is not required to report it to the disciplinary authorities. Opinions 89-54 (Vol. III); 89-74 (Vol. IV );89-75 (Vol. IV); 89-99 (Vol. IV ); 91-114 (Vol. VIII); 98-95 (Vol. XVII).

         In evaluating an attorney’s conduct to determine if it constitutes a substantial violation of the Code, a judge should weigh the facts in light of the governing Canons, Disciplinary Rules and Ethical Considerations. Opinion 89-54 (Vol. III). A substantial violation is one that implicates the attorney’s honesty, trustworthiness or fitness as a lawyer. Id. With respect to the present inquiry, the judge should review the appropriate Appellate Division rules that govern the conduct of attorneys assigned by the court as counsel for defendants in criminal cases. If, after considering the facts, the inquiring judge concludes that the attorney’s conduct is a substantial violation of the Code, the judge must report the conduct to the appropriate authority. If, however, the judge finds that the attorney’s conduct did not reach that level, a decision of whether to report the conduct is within the judge’s discretion.