Opinion 10-142

October 28, 2010

Digest:         (1) A judge is not required to investigate whether an attorney has engaged in misconduct. (2) The propriety of a prosecutor’s exercise of discretion in deciding whether and how to prosecute offenses raises legal issues beyond the Committee’s jurisdiction. (3) A judge who receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Rules of Professional Conduct shall take appropriate action.

Rules:          Criminal Procedure Law, art. 390; Judiciary Law §212(2)(l); 22 NYCRR 101.1; 100.2; 100.2(A); 100.3(B)(1); 100.3(D)(2); Opinions 10-85; 07-82; Cantwell v. Ryan, 309 AD2d 1042 (3d Dep’t 2003), aff’d 3 NY3d 626 (2004); People v Washington, 229 AD2d 726 (3d Dep’t), lv denied 88 NY2d 1025 (1996).

Opinion:

         The inquiring judges advise they are “perplexed” by a criminal charge filed against a defendant for allegedly violating a provision of the Vehicle and Traffic Law ask advice as to their ethical responsibility “to inquire or take any action with regard to the propriety of the charge in [the] case.” Because, in their view, the known facts warrant more serious charges, the inquirers also ask whether it is appropriate for them “to convene a conference with the prosecutor, defense attorney and defendant to inquire as to the justification for the lesser charge filed in this case.”

         A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2), must respect and comply with the law and must act at all times in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).

         The Committee notes that judges are not required to investigate possible misconduct by an attorney or judge (see Opinion 07-82). Moreover, here the conduct involves the propriety of a prosecutor’s exercise of discretion in deciding whether and how to prosecute offenses, a question which raises legal issues beyond the Committee’s jurisdiction (see Judiciary Law §212(2)(l); 22 NYCRR 101.1; see also e.g. Cantwell v. Ryan, 309 AD2d 1042 [3d Dep’t 2003], aff’d 3 NY3d 626 [2004] [the judiciary must not intrude upon the role of the prosecutor by directing that charges be presented against a suspect]). Therefore, the inquiring judges have no ethical responsibility to inquire about or take any action with regard to the propriety of the charge in the case pending before their court.

         Nevertheless, a judge is not ethically precluded from inquiring into the reason for an offense charged when it is legally permissible to do so (see generally 22 NYCRR 100.2[A]; 100.3[B][1]).¹ If as the result of any such inquiry, the judge presiding learns information indicating a substantial likelihood that the prosecuting attorney has committed a substantial violation of the Rules of Professional Conduct, the judge must take appropriate action (see 22 NYCRR 100.3[D][2]).

         The Committee generally advises judges that a decision on whether a substantial likelihood exists that an attorney committed a substantial violation of the Rules of Professional Conduct rests with the judge, who is in the best position to evaluate all relevant, known circumstances (see Opinion 10-85). Here, whether there is a substantial likelihood that the prosecutor engaged in misconduct and that it constitutes a substantial violation of the Rules of Professional Conduct are issues best left to the judge. And, if a judge concludes there is a substantial likelihood an attorney engaged in misconduct constituting a substantial violation of the Rules of Professional Conduct, what may constitute “appropriate action” under the circumstances is a matter ordinarily left to the judge’s discretion (see id.).

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            ¹ For example, judges might make such inquiries when considering a plea agreement (see e.g. People v Washington, 229 AD2d 726, 727, lv. denied 88 NY2d 1025 [1996] [trial court is not required to accept every offer of a plea merely because the defendant wishes to enter a plea and may reject a plea offer in the exercise of sound discretion]) or prior to imposing sentence (see e.g. Criminal Procedure Law art 390).