Opinion 10-36

March 10-11, 2010

Digest:         A judge who has received information about possible criminal activities by an attorney whose identity is unknown to the judge has no obligation to determine the attorney’s identity for the purpose of reporting the attorney to the disciplinary committee.

Rules:          Judiciary Law §212(2)(l); 22 NYCRR 101.1; 100.2[A]; 100.3[D][1]-[2]; Opinions 08-83; 08-08; 07-82; 04-74; 02-85; Joint Opinions 05-105/05-108/05-109; 88-85/88-103.

Opinion:

         Based on a conversation with an attorney about privileged attorney-client communications, the inquiring judge learned of information indicating that certain individuals, one of whom is an attorney, may be involved in criminal activity. According to the judge, these individuals currently are under investigation. The judge asks whether he/she may or must reveal the information to the investigator or if he/she is precluded from doing so by the attorney-client privilege. Also, the judge asks whether he/she must report the attorney’s alleged misconduct to the appropriate lawyer disciplinary committee or if he/she is precluded from doing by the attorney-client privilege.

         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 another judge or an attorney has committed a substantial violation of the Rules Governing Judicial Conduct or the Rules of Professional Conduct, respectively, must take appropriate action (see 22 NYCRR 100.3[D][1]-[2]).

         With respect to any criminal conduct by an individual who is neither a lawyer nor a judge, a judge has no obligation to report such conduct, but may do so in his/her discretion (see Joint opinion 88-85/88-103).

         With respect to a lawyer’s misconduct, the Committee has advised that in most cases, the judge involved must determine whether a substantial likelihood exists that the attorney committed a substantial violation of the Rules of Professional Conduct (see Opinions 04-74; 02-85). This of course assumes that the judge has sufficient information to make such a determination. However, it appears that the inquiring judge lacks any first-hand knowledge of the circumstances of the suspected criminal activities. In fact, the judge does not know the names of the individuals in question (compare e.g. Opinion 08-83 [noting that the judge had reliable information from, inter alia, his/her first-hand observations of the circumstances]; Joint Opinion 05-105/05-108/05-109 [noting that two judges had received virtually identical reports from multiple sources, including one report under oath]). As a judge is not required to conduct his/her own investigation to uncover criminal activity or attorney misconduct (see Opinion 07-82), it appears that the judge in the present inquiry has no obligation to act on the information he/she has received (see 22 NYCRR 100.3[D][2]), but may do so in his/her discretion (cf. Opinion 08-08 [judge may, but is not required to, counsel, reprimand, admonish, report or sanction a lawyer for a non-substantial ethical violation]).

         Whether the information the judge has learned is protected by the attorney-client privilege is a legal question beyond the Committee’s jurisdiction (see Judiciary Law §212[2][l]; 22 NYCRR 101.1).