Opinion 09-49

March 12, 2009

Digest:         A judge who learns during a sealed grand jury proceeding that the attorney who was the subject of the proceeding intends to report his/her own misconduct to the appropriate lawyer disciplinary authority need not take any further action if he/she can verify that the attorney has done so. If the attorney does not report his/her own misconduct, the judge must determine whether he/she may legally disclose information he/she learned during the sealed grand jury proceedings. If not, then the judge has no further disciplinary responsibility under the Rules Governing Judicial Conduct. If the judge may legally disclose the information, he/she then must determine whether the conduct constitutes a substantial or nonsubstantial violation of the Rules of Professional Conduct and thereafter take appropriate action.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(D)(2); 101.1; Opinions 08-08; 07-177; 04-04; 89-54 (Vol. III).

Opinion:

         A judge advises that he/she learned during a sealed grand jury proceeding that the attorney who was the subject of the proceeding engaged in misconduct. The judge advises that there is no question that the appropriate authority should investigate the attorney’s misconduct. However, according to the judge, he/she issued a seal order upon receiving the Grand Jury report and also sealed the decision and order sealing the Grand Jury report. The judge asks whether he/she is obligated to report the attorney’s misconduct even though the attorney advised the judge, the District Attorney and his/her own attorney during the grand jury proceeding that he/she would self-report to the appropriate lawyer disciplinary authority.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and 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 must take appropriate action (see 22 NYCRR 100.3[D][2]).

         In the Committee’s view, if the inquiring judge can determine that the attorney did actually report him/herself to the appropriate disciplinary authority he/she need not take any further action.

         If the attorney has not self reported or if the judge cannot determine that the attorney did so, the judge is required by the Rules Governing Judicial Conduct to take appropriate action (see id.). However, it appears from the judge’s inquiry that his/her only source of knowledge concerning the attorney’s conduct is the sealed grand jury proceeding. Therefore, the judge first must resolve whether he/she can disclose the information he/she learned during the grand jury proceeding. As this is a question of law, the Committee cannot provide the inquiring judge with any guidance in that regard (see 22 NYCRR 101.1). But, if the judge would violate the law by reporting the attorney’s conduct, it is Committee’s view that the judge has neither the authority nor the obligation to take any further action (see 22 NYCRR 100.2[A]).

         If the judge’s knowledge of the attorney’s conduct derives from a source other than the grand jury proceedings or if the judge determines that he/she can disclose information learned during the grand jury proceeding without violating the law, then the judge must take appropriate action (see 22 NYCRR 100.3[D][2]). In determining the appropriate action to take, the Committee previously has advised that a judge must evaluate an attorney’s conduct to determine if it is a substantial violation of the Code of Professional Responsibility. In evaluating an attorney’s conduct to determine if it is a substantial violation of the Code of Professional Responsibility, a judge should weigh the facts in light of the governing Canons, Disciplinary Rules and Ethical Considerations (see Opinion 89-54 [Vol. III]). An attorney’s conduct is a substantial violation if it implicates the attorney’s honesty, trustworthiness or fitness as a lawyer (see id.).

         If the judge concludes that the attorney’s conduct is a substantial violation of the Rules of Professional Conduct, the judge must take whatever action he/she deems appropriate under the circumstances (see 22 NYCRR 100.3[D][2]; Opinion 07-177). However, if the judge concludes that the attorney’s conduct is not a substantial violation of the Rules, the judge may, in the judge’s discretion, report the misconduct or take other appropriate action, but the judge is not mandated to take any further action (see Opinion 08-08; 04-74).

         Therefore, the judge in the present inquiry must act in accordance with the law governing disclosure of information learned during the sealed grand jury proceeding and, if disclosure is permissible, be guided by the principles set forth in the Committee’s earlier opinions cited above with respect to his/her disciplinary responsibilities.