Opinion 08-08

January 23, 2008

Please Note:

(1) Starting in December 2008, the Committee has consistently prohibited remittal of disqualification in matters where a judge previously reported an attorney to the grievance committee. See e.g. Opinion 08-183/08-202/09-112.  As of July 2021, the Committee has not overruled these opinions. 

(2) In light of an apparent dissonance between Judiciary Law § 9 (eff. December 2020) and Judiciary Law § 90(10), we have advised: "Whether a judge who has reported an attorney to an attorney grievance committee may publicly disclose the reason for recusal, when confidentiality has not been waived, is a legal question we cannot resolve." See Opinion 21-45.

Digest:         A judge may, but is not required to, report a lawyer for a non-substantial violation of the Code of Professional Responsibility to the appropriate departmental disciplinary committee, or may, inter alia, counsel, reprimand, admonish, or sanction the lawyer for his/her conduct. If the judge so reports the lawyer, he/she is disqualified from the lawyer’s cases, subject to remittal.

Rules:          22 NYCRR 100.3(D)(2); 100.3(E); 100.3(F); Opinions 06-107; 06-100; 04-74; 02-85; 01-120 (Vol. XX); 98-95 (Vol. XVII); 97-84 (Vol. XVI).

Opinion:

         During a custody proceeding, a Family Court Judge learned that a lawyer for one of the parties disclosed a confidential report to a witness. According to the judge, the disclosure may violate a statute that only allows a lawyer to disclose such a report to persons named or accused in the report. The Judge cannot definitively say the lawyer “knowingly” disclosed the report, nor that doing so was illegal.

         The Rules Governing Judicial Conduct require a judge, who receives information indicating a substantial likelihood a lawyer has committed a substantial violation of the Code of Professional Responsibility, to take appropriate action (see 22 NYCRR 100.3[D][2]). The judge notes the Committee previously advised that a judge is vested with discretion to report a lawyer who violates the Code of Professional Responsibility when such violation is not “substantial” (see Opinion 98-95 [Vol. XVII]; 97-84 [Vol. XVI]). The judge seeks the Committee’s guidance in evaluating whether to report a lawyer’s conduct that the judge considers to be a non-substantial violation of the Code, and if any action less severe than reporting the lawyer to the appropriate departmental disciplinary committee is appropriate.

         The factors a judge must consider in deciding whether to report a lawyer for a non-substantial violation of the Code of Professional Responsibility will depend on the nature of any accompanying proceeding, the context and potential impact of the conduct. The inquiring judge may consider other factors such as the degree of the law’s clarity or ambiguity as it relates to disclosure of the confidential report, whether the alleged violation was knowingly committed, the lawyer’s intent, and the extent to which the conduct involves the lawyer’s honesty and fitness to practice law. The judge also may consider the particular lawyer’s experience both as a practitioner in general and with respect to the conduct’s context. The Committee, however, “reaches no conclusion in this regard, other than to articulate the guidelines stated” (Opinion 02-85). Nor does the Committee interpret the statutes involved or the Code of Professional Responsibility (see Opinion 06-100).

         If the judge concludes the lawyer’s conduct constitutes a non-substantial violation of the Code of Professional Responsibility, the judge is vested with the discretion whether to report or refrain from reporting the lawyer to the appropriate departmental disciplinary committee (see Opinion 06-107; see also Opinions 04-74; 98-95 [Vol. XVII]). The judge instead may reprimand or admonish the lawyer; impose sanctions, if available (see Opinions 06-107; 02-85); or take other appropriate action such as counseling the lawyer as an interim or final measure.

         If the inquiring judge reports the lawyer to a departmental disciplinary committee, the judge is disqualified from the lawyer’s cases, subject to remittal (see 22 NYCRR 100.3[E][1]; 22 NYCRR 100.3[F]; see also Opinion 01-120 [Vol. XX]). If the judge discloses the basis for his/her disqualification, and the parties who have appeared and not defaulted and their lawyers, without the judge’s participation, all agree on the record that the judge should nevertheless preside, and the judge believes he/she will be impartial and is willing to participate, the judge may participate in the proceeding (see id.). Absent an agreement to remit the disqualification, the judge must recuse him/herself from the proceeding.