Opinion 07-129

September 6, 2007

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:         Where an attorney has admitted under oath that he/she committed perjury, the judge should report the attorney to the appropriate attorney disciplinary committee.

Rules:          22 NYCRR 100.3(D)(2); Opinions 06-99; 06-24; 05-84; 05-37; 04-74; 02-129; 02-85; 00-64; 98-95 (Vol. XVII); 91-114 (Vol. VIII); 89-74 (Vol. IV); 89-54 (Vol. III); Joint Opinion 88-85 and 88-103 (Vol. III).

Opinion:

         The inquiring judge presided over a hearing on a petition Lawyer A filed against Lawyer B, to dissolve a professional corporation. Although the parties ultimately agreed to settle the matter, the judge heard testimony during an evidentiary hearing where Lawyer B testified under oath that he/she committed perjury when executing certain tax documents. Based on the limited testimony offered during the hearing, the judge also believes that Lawyer B failed to file personal income tax returns for two tax filing years. Lawyer B also alleged in his/her pleadings that Lawyer A used the firm’s corporate credit card for personal items and withdrew all of the funds from the firm’s joint bank account.

         The judge asks the following questions:

(a) Since I have not made a decision based on the incomplete hearing, and the hearing terminated by reason of settlement without having all of the possible testimony or evidence, may I properly form a conclusion as to whether there is a “substantial likelihood” of a substantial violation of the Code of Professional Responsibility by either Lawyer A or Lawyer B?

(b) If it is appropriate to form a conclusion that there is a “substantial likelihood” of a substantial Code violation by either Lawyer A or Lawyer B, is it appropriate to take action by report to the [appropriate attorney disciplinary committee] and to that Committee only?

(c) In the event that it is appropriate to report the situation to the [appropriate attorney disciplinary committee], should that report explain the circumstances or should it simply call the Committee’s attention to potential Code violations in connection with the practice of Lawyers A and B?

(d) In the event that it is appropriate to report the situation to the [appropriate attorney disciplinary committee], it is [sic] to limit the report to Lawyer B only?

         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). This Committee has generally and consistently advised that the presiding judge can best determine whether an attorney has committed a substantial violation of the Code of Professional Responsibility. Opinions 04-74; 02-85; 98-95 (Vol. XVII); 91-114 (Vol. VIII).

         Sometimes, a substantial Code violation is so clearly serious or egregious that the Committee has said a judge should report it to a disciplinary authority. See, e.g., Opinions 05-37; 02-129. Here, Lawyer B admitted under oath he/she committed perjury. Such conduct “implicates the attorney’s honesty, trustworthiness or fitness as a lawyer,” and therefore is a substantial violation of the Code of Professional Responsibility. See Opinions 06-99; 04-74; 89-74 (Vol. IV); 89-54 (Vol. III). In such circumstances, the judge should report Lawyer B to the appropriate disciplinary committee. Whether to report to another authority, however, rests in the judge’s sole discretion. See Opinion 05-84; Joint Opinion 88-85 and 88-103 (Vol. III).

         As to Lawyer A, who did not testify during the hearing, the judge must determine whether there is a substantial likelihood that he/she committed a substantial violation of the Code of Professional Responsibility, and if so, take the appropriate action. Opinions 06-24; 02-85.