Opinion 10-106
January 27, 2011
Digest: (1) Where it appears that an attorney has failed to comply with the attorney registration requirements Judiciary Law §468-a requires, a judge should afford the attorney an opportunity to demonstrate that he/she filed the mandatory registration statement and/or paid the prescribed fee to avoid an unnecessary report to the disciplinary committee. If the attorney is not in compliance with Judiciary Law §468-a, the judge must report the attorney to the appropriate Appellate Division of the Supreme Court for disciplinary action. (2) Where it appears that a nonresident attorney does not maintain a physical law office or an actual mailing address in New York State as Judiciary Law §470 requires, a judge should afford the attorney an opportunity to demonstrate otherwise. If the attorney does not produce satisfactory evidence of compliance, and the judge concludes that the attorney has thereby committed a substantial violation of the Professional Conduct Rules, the judge should take appropriate action
Rules: Judiciary Law §468-a (1), (4), (5); §470; Kinder Morgan Energy Partners, LLP v Ace Am. Ins. Co., 51 AD3d 580 (1st Dep’t 2008); Tatko v McCarthy, 267 AD2d 583 (3rd Dep’t 1999); Matter of Scarsella, 195 AD2d 513 (2nd Dep’t 1993); 22 NYCRR 100.2(A); 100.3(D)(2); 118.1(a), (g), (h); Part 1200; Opinions 08-198; 07-129; 07-82; 02-85; 98-95 (Vol. XVII).
Opinion:
A judge asks what his/her obligation is upon learning an attorney appearing in the judge’s court may not have paid the mandatory attorney registration fee or when an out-of-state attorney appearing in the judge’s court is currently registered “but does not maintain a physical law office or actual mail address within the state.”
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]).
Every attorney and counselor-at-law admitted to practice in New York State must file a registration statement and pay a registration fee biennially (see Judiciary Law §468-a[1], [4]; 22 NYCRR 118.1[a], [g]). Noncompliance constitutes conduct prejudicial to the administration of justice and must be referred to the appropriate Appellate Division of the Supreme Court for disciplinary action (see Judiciary Law §468-a [5]; 22 NYCRR 118.1[h]).
In addition, Judiciary Law §470 provides as follows:
A person, regularly admitted to practice as an attorney and counselor, in the courts of record of this state, whose office for the transaction of law business is within the state, may practice as such attorney or counselor, although he resides in an adjoining state.
The Appellate Division, First Department has interpreted Judiciary Law §470 as requiring a nonresident attorney to at least maintain an office in New York State for the purpose of practicing law. The failure to comply requires dismissal of the action, without prejudice to re-commencement (see Kinder Morgan Energy Partners, LLP v Ace Am. Ins. Co., 51 AD3d 580 [1st Dep’t 2008]).
The Committee has consistently advised that a judge who is confronted with an attorney’s possible misconduct must determine whether there is a substantial likelihood that the attorney has committed a substantial violation of the Rules of Professional Conduct (see Opinions 08-198; 02-85; 98-95 [Vol. XVII]). Nevertheless, in a relatively few instances, the Committee has advised that a judge must report a lawyer’s misconduct when the substantial misconduct was so egregious that it implicated the attorney’s honesty, trustworthiness or fitness as a lawyer (see e.g. Opinion 07-129 [judge must take appropriate action as to lawyer admitting perjury in open court]).
The Committee also has advised that a judge is not required to conduct his/her own investigation to uncover criminal activity or attorney misconduct (see Opinion 07-82). However, because the Judiciary Law imposes a reporting requirement when an attorney has failed to file a registration statement and pay a fee biennially (see Judiciary Law §468-a [1], [4]), it is the Committee’s view that a judge who has reason to believe that an attorney may not be in compliance, should afford the attorney an opportunity to demonstrate that he/she filed the mandatory registration statement and/or paid the prescribed fee to avoid an unnecessary report to a disciplinary committee (see id.). Thereafter, if the attorney does not produce satisfactory evidence of compliance, the judge must report the attorney to the appropriate Appellate Division of the Supreme Court for disciplinary action (see Judiciary Law §468-a [5]; 22 NYCRR 100.2[A]; 118.1[h] )1.
With respect to a nonresident attorney who is admitted to practice law in New York State, where a judge has reason to believe such an attorney does not maintain a physical law office or an actual mailing address in New York State as Judiciary Law §470 requires, the judge should afford the attorney an opportunity to demonstrate otherwise. If the attorney fails to do so and the judge concludes that the attorney has thereby committed a substantial violation of the Professional Conduct Rules, the judge should take appropriate action (see 22 NYCRR 100.3[D][2]).
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1In Matter of Scarsella, 195 AD2d 513 (2nd Dep’t 1993), the Appellate Division held that an attorney’s failure to register and pay the required registration fee does not preclude the attorney from practicing law.