Opinion 05-37

April 21, 2005

Digest:          A judge who believes that an attorney has attempted to unduly influence the judge’s decisions and has acted extremely unprofessionally should report the matter to the appropriate Attorney Grievance Committee and, upon making such report, recuse in all cases in which the attorney appears.

Rules:           22 NYCRR 100.3(D)(2); 100.3 (E)(1); Opinion 05-30.

Opinion:

           The inquiring town court judge informs the Committee that he/she has encountered problems with an attorney who appears before him/her. As stated by the inquirer, the individual in question “is also the attorney for [the town] and sits on the board that oversees control of town and court matters, both financial and administrative. On several occasions Mr. has attempted to use his position (with the town) in an attempt to unduly influence decision(s). I believe his conduct to be not only extremely unprofessional, but also a conflict of interest on Mr. behalf.”

           The judge has brought the matter to the attention of the outgoing town justice, the other current town judge, the town supervisor and several board members, and now asks the Committee “whether Mr. should be allowed to continue to represent clients with cases pending in Town Court.”

           This Committee has no authority to determine whether an attorney is to be barred from representing clients in a particular court. As stated in Opinion 05-30, “. . . this Committee is not authorized to construe the Code of Professional Responsibility [and] is likewise not authorized to determine what constitutes a conflict of interest or other disability that requires removal of a lawyer from a case.” Opinion 05-30. However, section 100.3(D)(2) of the Rules Governing Judicial Conduct 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). Here, the inquiring judge has concluded that the attorney in question has used his position with the town “in an attempt to unduly influence” the judge’s decisions; that his conduct is “extremely unprofessional”; and that it amounts to a “conflict of interest.”

           Given the conclusions reached by the inquirer and the apparent unsuccessful attempts to rectify the situation as he/she sees it, the Committee is of the view that the judge should report the matter to the Attorney Grievance Committee of the judge’s Judicial Department. That is the official body charged with conducting inquiries into claims of attorney misconduct. Should the judge do so, he/she should then exercise recusal in all matters in which the attorney appears before the judge, so as to avoid any claim of lack of impartiality. 22 NYCRR 100.3(E)(1).