Opinion 10-64

April 22, 2010

Digest:         A judge does not have information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Rules of Professional Conduct where an attorney publicly discloses that his/her client, who is charged with a crime, made false statements in an affidavit in support of a motion the client filed pro se and that the client is likely to do so again, as the judge does not know the substance of the alleged false statements or that the attorney’s allegation is true.

Rules:          22 NYCRR 100.2; 100.3(D)(2); Professional Conduct Rules 3.3(b); Opinions 10-85; 07-129; 91-36 (Vol. VII).

Opinion:

         A judge asks whether he/she must report an attorney who, in open court, on the record and in the prosecutor’s presence, disclosed that his/her client, who is charged with a crime, made “false statements” in an affidavit in support of a motion the client filed pro se and that his/her client is likely to do so again if the client testifies. The judge advises that he/she does not know the specific statements that are alleged to be false.

         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). Therefore, a judge who receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Rules of Professional Conduct (formerly the Code of Professional Responsibility) must take “appropriate action” (22 NYCRR 100.3[D][2]).

         The Committee previously has advised that the judge who learns of an attorney’s potential misconduct is in the best position to evaluate and assess the relevant circumstances known to the judge to determine whether a substantial likelihood exists that the attorney committed a substantial violation of the Rules of Professional Conduct (see Opinion 10-85). And, once the judge so concludes, the Committee has further advised that the judge must report the attorney’s conduct to a disciplinary authority only if the alleged misconduct rises to such an egregious level that it implicates the attorney’s honesty, trustworthiness or fitness as a lawyer (see id.; 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]). However, if the alleged misconduct is not so egregious as to implicate the lawyer’s honesty, trustworthiness or fitness to practice law, the judge need not necessarily report the lawyer to the appropriate disciplinary authority (see Opinion 10-85). Rather, the judge has the discretion to take less severe, appropriate measures, including but not limited to, counseling and/or warning a lawyer, reporting a lawyer to his/her employer, and/or sanctioning a lawyer (see id.; cf. Opinion 91-36 [Vol. VII] [where no improper motivation by non-lawyer judge, administrative measures appropriate action]).

         In the Committee’s view, the judge in the present inquiry does not have “information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Code of Professional Responsibility” (22 NYCRR 100.3[D][2]). The judge advises that he/she does not know the substance of the statements the client made that the attorney alleges are false. Nor does the judge know whether the attorney’s allegation is true or have any obligation to investigate further (see Opinion 10-85). Therefore, the judge does not have sufficient information to warrant further action.

         The Committee also notes that the attorney relied on Rule 3.3(b)of the Professional Conduct Rules as authority for his/her actions. As that Rule has been enacted relatively recently, the extent and manner of its application to criminal defendants may currently be unclear.