Opinion 11-48

April 28, 2011

Digest:         A support magistrate who receives information indicating a substantial likelihood that an attorney has failed to pay court-ordered child support must determine whether the attorney’s conduct, under the specific circumstances known to the support magistrate, constitutes a substantial violation of the Rules of Professional Conduct and, if so, must then take appropriate action.

Rules:          Family Court Act 458-b; 22 NYCRR 100.2(A); 100.3(D)(2); 100.6(A); Opinions 10-85 (Amended); 10-64; 09-17; 08-08.

Opinion:

         A support magistrate asks about his/her disciplinary responsibility when he/she learns that the respondent in a support proceeding, who is an attorney, has failed to pay court-ordered child support. The support magistrate states that frequently the petitioner in such proceedings does not seek a finding of willful failure to obey the payment order and would even prefer that the inquirer refrain from reporting the respondent/attorney. Under these circumstances, the support magistrate asks whether he/she must report the respondent/attorney “in every instance” or “only if a willful failure to obey the court order is found and a request is being made [pursuant to Section 458-b of the Family Court Act] to revoke the attorney’s license.”

         A person who performs judicial functions within the judicial system, such as a support magistrate, must comply with the Rules Governing Judicial Conduct in the performance of his/her judicial functions and otherwise must “so far as practical and appropriate” use such rules as guides to his/her conduct (22 NYCRR 100.6[A]; see also Opinion 09-17). Accordingly, a support magistrate must respect and comply with the law and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Further, a support magistrate who receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Rules of Professional Conduct must take “appropriate action” (22 NYCRR 100.3[D][2]).

         The Committee has previously advised that a judge who learns of an attorney’s potential misconduct is ordinarily in the best position to evaluate and assess the relevant circumstances and determine whether a substantial likelihood exists that the attorney committed a substantial violation of the Rules of Professional Conduct (see Opinion 10-64).

         In the Committee’s view, even if a support magistrate finds that an attorney/respondent in child support proceedings is in “willful” violation of a court order or determines that Family Court Act §458-b is applicable to the respondent’s conduct,¹ the support magistrate is not automatically required to report the attorney/respondent to the disciplinary authorities. Instead, the support magistrate should consider whether, in light of all the facts and circumstances currently known to him/her, there is a substantial likelihood that the attorney/respondent has committed a substantial violation of the Rules of Professional Conduct (see 22 NYCRR 100.3[D][2]). Only if the support magistrate so concludes, must he/she take “appropriate action” (id.).

         The nature of the substantial violation will determine whether “appropriate action” is to report an attorney’s misconduct to the disciplinary authorities or some other action. If, based on the facts and circumstances currently known to the support magistrate, the support magistrate concludes that the substantial violation is so egregious that it seriously calls into question the attorney’s honesty, trustworthiness or fitness as a lawyer, the appropriate action is to report the attorney’s conduct to the grievance committee (see Opinion 10-85 [Amended]).

         Alternatively, if the support magistrate concludes that there is a substantial likelihood of a substantial violation under the facts currently known to the support magistrate but that the substantial violation does not seriously call into question the attorney’s honesty, trustworthiness or fitness as a lawyer, the support magistrate has full discretion to determine that some other action is appropriate under the circumstances (see Opinion 10-85 [Amended]). Appropriate actions may include, but are not limited to, counseling and/or warning a lawyer, reporting a lawyer to his/her employer, and/or sanctioning a lawyer (see id.). And, in considering what action is appropriate, the support magistrate may assess whether the lawyer, when confronted by the support magistrate, 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 support magistrate (see id.).

         If the support magistrate determines that the attorney’s conduct does not violate the Rules of Professional Conduct, or is merely a technical or insubstantial violation, the support magistrate is not required to take any action, but may do so in his/her discretion (see 22 NYCRR 100.3[D][2]; Opinion 08-08).

         The Committee again emphasizes that a judge or any other person required to comply with the Rules Governing Judicial Conduct is under no ethical obligation to conduct an investigation to determine how serious or minor any misconduct may be (see Opinion 10-85 [Amended]).

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     ¹ Section 458-b of the Family Court Act provides that, if a respondent in child support proceedings has accumulated support arrears above a specified threshold and the court has determined that the respondent is licensed by the State of New York to conduct a particular profession or occupation, “the court may order... the suspension of [the respondent’s] license” (Family Court Act 458-b[a]).