Opinion 08-198

December 4, 2008

Please Note: As of the Committee’s April 29, 2021 meeting:

(1) The Committee has not overruled its prior opinions prohibiting remittal of disqualification in matters where a judge previously reported an attorney to the grievance committee. 

(2) With respect to whether a judge may publicly disclose the reason for recusal here, in light of the 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 (but noting that private disclosure to the reported attorney is ethically permissible).

Digest:         A judge who is aware that an attorney does not comply with a bar association ethics committee opinion must determine if such conduct evidences a substantial likelihood that the attorney has committed a substantial violation of the Rules of Professional Conduct and, if he/she so determines, must take appropriate action.

Rules:       22 NYCRR 100.2(A); 100.3(D)(2); 101.1. Joint Opinion 08-183/08-202/09-112; Opinions 07-129; 04-74; 02-85; 00-97 (Vol. XIX); 98-95 (Vol. XVII); 98-65 (Vol. XVII); 97-84 (Vol. XVI); 91-114 (Vol. VIII).

Opinion:

         The inquiring judge is aware of an opinion by the New York State Bar Association Committee on Professional Ethics concerning attorney conflicts of interest. According to the judge, he/she believes that more than one attorney who appears before him/her is in violation of the principles set forth in the opinion. The judge asks whether the court is “in any way culpable when [it is] aware of [the ethics opinion] being ignored by attorneys who come before it.”

         A judge must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). Therefore, a judge who receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of The Rules of Professional Conduct (22 NYCRR part 1200, f/k/a The Code of Professional Responsibility) must take appropriate action (see 22 NYCRR 100.3[D][2]).

         This Committee has consistently advised that a decision whether a substantial likelihood exists that an attorney committed a substantial violation of the Rules of Professional Conduct rests with the judge (see, Opinions 02-85; 98-95 (Vol. XVII); 98-65 (Vol. XVII); 97-84 (Vol. XVI). Only in relatively few instances has the Committee advised that a judge must report a lawyer’s misconduct (see e.g. Opinion 07-129 [judge must take appropriate action as to lawyer admitting perjury in open court]).

         Bar association ethics opinions are often persuasive and helpful to courts in their reasoning and analysis. However, "[b]ar association ethics opinions in New York are not issued by or formally endorsed by the courts and are not binding on any court... ." (Simon, Simon’s New York Code of Professional Responsibility Annotated, Author’s Introduction, at xx [2007]). Nevertheless, a judge who becomes aware of a lawyer’s departure from such an opinion’s principles may certainly consider it a factor in evaluating the attorney’s conduct, but still must decide if there is a substantial likelihood that the lawyer committed a substantial violation of the Rules of Professional Conduct (see 22 NYCRR 100.3[D][2]).

         Thus, the Committee concludes that it is within the inquirer’s discretion whether further action is required against any lawyer involved. If the judge does report a lawyer, he/she should then take appropriate steps to disqualify him/herself when the reported lawyer appears while the complaint is pending (see Joint Opinion 08-183/08-202/09-112). Remittal of disqualification is unavailable in this circumstance as disclosure of the judge’s reason for disqualification necessarily breaches the lawyer’s right to confidentiality of the disciplinary process (see id).

         To the extent the inquirer is asking the Committee whether it is appropriate to disqualify the lawyers pursuant to the applicable lawyer ethics rules, that is a legal question beyond the Committee’s statutory power (see Judiciary Law §212 (2) (l); 22 NYCRR 101.1).