Opinion 10-86

June 10, 2010

Please Note: As of the Committee’s April 29, 2021 meeting:

(1) The Committee has not overruled its prior opinions prohibiting remittal of disqualification in matters where a judge previously reported an attorney to the grievance committee. 

(2) With respect to whether a judge may publicly disclose the reason for recusal here, in light of the apparent dissonance between Judiciary Law § 9 (eff. December 2020) and Judiciary Law § 90(10), we have advised: “Whether a judge who has reported an attorney to an attorney grievance committee may publicly disclose the reason for recusal, when confidentiality has not been waived, is a legal question we cannot resolve.”  See Opinion 21-45 (but noting that private disclosure to the reported attorney is ethically permissible).

Digest:         A judge who believes that the charges in a criminal complaint against a lawyer would, if proved, constitute a substantial violation of the Rules of Professional Conduct is not required to take any action unless he/she concludes there is a substantial likelihood that the charges are true. If the judge does report the lawyer, the judge must disqualify him/herself, without the possibility of remittal, if the lawyer appears before the judge while the disciplinary complaint is pending.

Rules:          22 NYCRR 100.2(A); 100.3(D)(2); 100.3(E)(1); 100.3(F); 22 NYCRR part 1200; Opinions 09-13; 08-198; 07-82; 06-150; Joint Opinion 08-183/08-202/09-112.

Opinion: 

         In the course of his/her judicial duties, a judge has reviewed a criminal complaint that charges a lawyer with grand larceny in the third degree. The judge advises that he/she has no personal knowledge about the alleged conduct, but he/she believes that if the charges are sustained, the conduct would constitute a “substantial violation” of the Rules of Professional Conduct. According to the inquiring judge, the lawyer has not been indicted, and the judge is unaware of any corroborating evidence. The judge asks whether he/she must report the lawyer to the disciplinary committee.

         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 (see 22 NYCRR part 1200, f/k/a The Code of Professional Responsibility) must take appropriate action (see 22 NYCRR 100.3[D][2]).

         The Committee has consistently advised that a judge who learns of possible misconduct by a lawyer must determine whether a substantial likelihood exists that the lawyer has committed a substantial violation of the Rules of Professional Conduct (see Opinions 08-198; 06-150). Here, the judge states that he/she has already determined that the charges, if proven, would constitute a “substantial violation” of the Rules of Professional Conduct (cf. Opinion 09-13 [a substantial violation is one that implicates an attorney’s honesty, trustworthiness, or fitness as a lawyer]). However, the judge must further determine whether, based on the information currently available to him/her, there also is a “substantial likelihood” that the charges are true (see Opinion 07-82 [a judge is not required to conduct an investigation of alleged misconduct]). If the judge concludes there is a substantial likelihood that a lawyer committed a substantial violation of the Rules of Professional Conduct, the judge must take appropriate action, which may include reporting the attorney to the appropriate attorney grievance committee (see Opinion 06-150). In addition, a judge may, but is not required to, report a non-substantial violation (see Opinion 09-13).

         If the judge does report the lawyer, he/she should disqualify him/herself from matters involving that lawyer while the disciplinary complaint is pending (see Joint Opinion 08-183/08-202/09-112; 22 NYCRR 100.3[E][1]). Remittal of disqualification will not be available, because disclosure of the judge’s reason for disqualification would breach the lawyer’s right to confidentiality of the disciplinary process (see Joint Opinion 08-183/08-202/09-112; 22 NYCRR 100.3[F]).