Opinion 10-122

October 28, 2010

Digest:         A judge must determine whether he/she has information indicating a substantial likelihood that an attorney has committed a substantial violation of the Rules of Professional Conduct and, if so, must take appropriate action. Should the judge report the attorney, the judge is disqualified from presiding in matters in which the attorney appears during the pendency of the disciplinary proceeding and for two years after it finally concludes, and remittal is unavailable.

Rule:            22 NYCRR 100.2; 100.2(A); 100.3(D)(2); Opinions 10-85; 09-49; 08-198; 08-08; 07-179; 07-82; 98-95 (Vol. XVII); 91-36 (Vol. VII); Joint Opinion 08-183/08-202/09-112.

Opinion:  

         A criminal court judge states that a witness in the judge’s court testified that a defendant’s prior attorney was present when the defendant’s friends offered the witness money to leave the jurisdiction and that the attorney also advised the witness that “it was in her best interest to leave the area.” The judge further states that the prosecutor has advised the judge that the prosecutor’s office has already reported the defendant’s prior attorney to an attorney grievance committee. The judge asks whether he/she must take any action regarding the attorney, such as reporting the attorney or disqualifying him/herself from matters in which the attorney appears.

         A judge must always avoid impropriety and its appearance (see NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (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 (Rules) must take appropriate action (see 22 NYCRR 100.3[D][2]).

         The Committee has previously advised that a judge who learns of an attorney’s possible misconduct must him/herself determine based on the information received whether there is a substantial likelihood that the attorney engaged in the alleged misconduct, and if so, whether that conduct constitutes a substantial violation of the Rules (see Opinions 08-198; 98-95 [Vol. XVII]).

         A judge who concludes that both elements are satisfied must take “appropriate action” (22 NYCRR 100.3[D][2]). What constitutes appropriate action necessarily depends on the context and nature of the substantial violation. The Committee has previously advised that a judge need not report an attorney to a disciplinary authority if the misconduct is not so egregious as to implicate the lawyer’s honesty, trustworthiness or fitness to practice law (see Opinion 10-85). Rather, the judge has the discretion to take other appropriate measures instead of, or in addition to, reporting the attorney, including, but not limited to, counseling and/or warning a lawyer, reporting a lawyer to his/her employer, and/or sanctioning a lawyer (cf. Opinion 91-36 [Vol. VII] [advising that purely administrative measures constituted appropriate action under the circumstances]).

         Appropriate action in such situations depends on all the surrounding circumstances known to the judge, including an assessment of whether the lawyer, if confronted by the judge, shows genuine remorse, contrition, or ignorance of a rule; whether the lawyer has any history of unprofessional or other conduct in violation of the Rules; or any other relevant conduct or factor known to the judge (cf. Opinion 08-08 [within judge’s discretion to report attorney for non-substantial violation to appropriate disciplinary committee or take other less severe action such as counseling, reprimanding, admonishing or sanctioning attorney]). However, a judge is under no ethical obligation to conduct an investigation to determine how serious or minor any misconduct may be (see Opinion 07-82).

         Alternatively, if the substantial misconduct is so egregious that it implicates the attorney’s honesty, trustworthiness or fitness as a lawyer, the judge must report the attorney to the appropriate disciplinary body (see e.g. Opinion 07-129 [judge should report attorney to appropriate attorney disciplinary committee where attorney admitted under oath that he/she committed perjury]).

         Even if the judge concludes that an attorney’s conduct does not rise to the level of a substantial violation, the judge retains discretion to report a non-substantial violation if he/she deems it appropriate or necessary to do so (see Opinion 08-08).¹

         Should the inquiring judge report the attorney’s conduct as a violation of the Rules, the judge is disqualified from presiding in any case in which the attorney appears during the pendency of the disciplinary matter and for a period of two years after the disciplinary matter is fully resolved. And, disqualification for this reason is not subject to remittal unless the disciplinary authority has made the misconduct a matter of public record (see Joint Opinion 08-183/08-202/09-112).

         With respect to the possibility that the District Attorney has already reported the attorney’s conduct to the appropriate grievance committee, the Committee has previously advised that a judge, who is satisfied that an attorney’s alleged misconduct has actually been previously reported, is not required to take any further action (see Opinion 09-49).

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¹The Committee has advised: "The factors a judge must consider in deciding whether to report a lawyer for a non-substantial violation of the Code of Professional Responsibility (now Rules of Professional Conduct) 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 [the misconduct], 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 judge instead may reprimand or admonish the lawyer; impose sanctions, if available; or take other appropriate action such as counseling the lawyer as an interim or final measure [citations omitted]" (Opinion 08-08).